S.A. Shah, J.
1. The petitioner herein claims that he is the finder of the preasure as also that the treasure was found from the land belonging to him and, therefore, he has challenged the order of the Collector, Surat, and the judgment and order of the Special Secretary, dated 29-8-1978, rejecting the claim of the petitioner both on facts as well as by application of Sections 20 and 21 of the Indian Treasure-Trove Act, 1978 (hereinafter referred to ,as 'the Act') on the ground that the petitioner has failed to give notice as required under Section 4 thereof, and if he is the owner and not the finder, then for punishment under Section 21 of the Act.
2. As disclosed from the Order dated 13-12-1977 (Annexure 'A' to the petition) of the Collector, during the digging of the foundation of the new residential building of the petitioner, on 8-2-1977 the Labourers found out silver coins and all of them, except a few, were given by them to the petitioner. However, it appears that neither the petitioner nor any other person gave notice as required under Section 4 of the Act in respect of the same. The Collector. Surat, has stated in his order that Police Sub-Inspector, Mahuva, received an anonymous application dated 27-2-1977 in respect of this treasure and he, therefore, started inquiry. During the course of inquiry, II labourers were interrogated and they produced before the said Police Sub-Inspector on 25-3-1977 in 'all 131 silver coins. These labourers had made a statement before the Police Officer that while they were digging the foundation of the residential building of the petitioner, the said silver coins were found by them, and the same were given by them to the petitioner. On that very day, i.e. 25-3-1977, the petitioner also produced old silver coins - 1,431 in number before the Police Sub-Inspector. The valuation of the said silver coins totalling to 1,562 was assessed at Rs. 19,000/. The said coins bore inscription 'Mubarak-Surat-24 Hijri' in Persian language. The Archaeological Department of the State of Gujarat had given opinion under Section 13 of the Act and Rule 5 of the rules made under the said Act, that the said coins should be acquired by the State Government. However, the land where from the said coins were found was not required to be acquired.
3. The Collector, Surat, published a Notification dated 26-7-1977 as required under Section 5 of the Act, calling upon the interested persons to lodge their claim with relevant evidence on or before 29-11-1977 at 12.00 noon in his office and to remain present on that day for proving their respective claims. Two persons who were interested, prayed for adjournment, which was not granted, with which we are not concerned in this petition. One Jawaharlal Dinkerrai Desai of Navsari asked for adjournment enable him to produce the statements of the labourers who had recovered the coins in question alongwith the panchnamas and the relevant papers of the inquiry. This was by a letter dated 24-11-1977. The said adjournment was not granted. He had not remained present on the appointed day. One Balwantrai Krishnaji Desai, through his Advocate, and present petitioner Bhaktibhai Gopaiji Bhakta made a submission that they were entitled to the Treasure-Trove. The claim of Balwantrai was based upon the land which was sold by him to the petitioner. But that claim was ultimately found to be untenable and was dismissed. We are not concerned with the said claim in this petition. The present petitioner, however, claims ownership of both the pieces of land, viz. land which was purchased by him in year 1957 from Balwantrai as well as the land for which he had entered into a contract of sale and had actually received possession from Rasvindra Dahyabhai. The said land bears property Survey No. 217. He has also contended that the treasure was found while digging the foundation of his residential house through his labourers and, therefore, he is also the finder of the treasure.
4. It cannot be disputed that the petitioner was in possession of the land in question and actually the treasure was found while digging the foundation pits of his residential house. It is also not disputed by the authorities that this treasure-trove was found from Survey No. 217, which was admittedly in possession of the petitioner at the relevant time. There was no registered document of sale, and ownership is being claimed by the petitioner on the basis of the agreement to purchase as well as his possession, and his purported act of making application for transfer of entries before the Panchayat. Original owner, viz. Ravindra Dahyabhai Desai has not appeared nor made any claim regarding the ownership of the land. In the aforesaid circumstances, it is difficult to sustain the finding of the Collector that the petitioner cannot claim the treasure or part of it on the basis of the ownership of the land from where the same was found, since for all practical purposes the petitioner was the owner and his ownership right was not disputed by Ravindra Dahyabhai Desai. If the Collector wanted lo dispute the title of the petitioner, he ought to have referred the matter to, or asked the petitioner to obtain a declaration from, the Civil Court.
5. I shall now examine the findings of the authorities below on the basis whether the petitioner was entitled to make a claim of the treasure-trove as an owner of the land, and whether his claim as a finder was sustainable under the scheme of the Act, and whether the action of the authorities below in forfeiting the treasure under the provisions of Sections 20 and 21 of the Act was justified?
6. Under the scheme of the Act, mandatory duty is cast upon a person who finds a treasure to give notice to the Collector in writing as soon as practicable, showing the particulars mentioned in Clauses (a) to (c) of Section 4 of the Act. There is a further obligation on the finder of the treasure either to deposit the treasure in the nearest Government Treasury or give to 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. It is an admitted position that neither the petitioner nor the labourers has/have given any notice under Section 4 of the Act, It is also, in my opinion, amply established that after the investigation was started by the Police Sub-Inspector on an anonymous application dated 27-2-1977,11 labourers deposited 131 silver coins, and the present petitioner also on the same day deposited the remaining 1,431 silver coins before the Sub-Inspector, as stated above. It is not clear from the decision of the Collector whether the labourers deposited the silver coins first or the petitioner deposited the silver coins first.
7. The Collector during his inquiry under Section 9 of the Act. found that the said silver coins were about 1200 years old, and according to him, the same were hidden for more than 100 years, and nobody having claimed any owner-ship, he declared the said treasure to be ownerless under the provisions of Section 9 of the Act. He has also come to the conclusion that the labourers were the finder of the treasure, and that the petitioner was either a finder nor the owner of the land who can claim any right over the treasure, and rejected his claim on that ground. He has further held that the labourers who were the finder of the treasure and had delivered the same to the petitioner on 8-2-1977, had not declared this treasure till 25-3-1977, and had tried to make attempts to conceal the same. The labourers have also not remained present at the time of hearing. Under the circumstances, no question arises to hand-over the treasure or part of it to the labourers, under Section 11 of the Act. He has further held that even the right to division of the treasure on the basis of the finder is also forfeited to Government under Sections 20 and 21 of the Act and, therefore, all the silver coins were ordered by him to be forfeited to Government.
8. The petitioner and Balwantrai Krishnaji Desai being aggrieved by the said decision of the Collector, filed an appeal, being No. SS/RD/TTA/1/78 and 2/78, before the Special Secretary, Revenue Department, which were dismissed by the Special Secretary by his order dated 29-8-1978 (Annexure 'B' to the petition). Balwantrai Desai has not filed any petition against that order and, therefore, the same has become final so far as he is concerned.
9. The present petitioner being aggrieved by the said order of the Special Secretary has filed this petition. Mr. V.M. Trivedi, learned Advocate for the petitioner, has raised the following contentions:
(1) None of the authorities below has found the petitioner to be a 'finder' or 'abetor' of the treasure and, therefore, Section 20 or 21 of the Act has no application.
(2) Under Section 12 of the Act the petitioner is the only person who remains claiming part of the treasure on the ground that he was the owner of the land from which the treasure was found, and the labourers even if considered to be the 'finders', have not objected to the claim of the petitioner and, therefore, the Collector was bound to give to the petitioner his part of the treasure as the owner of the land in question.
(3) Under the provisions of Section 5 of the Act, the Collector was bound to issue special notice to the owner of the land, and if there was any dispute regarding the ownership of the petitioner over the said land, such notice having not been given, no such objection can be raised now.
10. Before I deal with the contentions of Mr. Trivedi, it will be worthwhile to consider the Scheme of the Act. As stated earlier, Section 4 of the Act makes is mandatory for the finder to give notice to the Collector and deposit the treasure in the nearest Government treasury, or give the Collector such security as the Collector thinks fit for the said amount. The Scheme of the Act makes it amply clear that the inquiry starts only on receipt of the notice under Section 4 of the Act from the finder.
11. Under Section 5 of the Act, on receipt of such notice the Collector has to publish notification to that effect, after making inquiry, as required under Clause (a) and also serve individual notice under Clause '(b) to the person from whose land the treasure was found. Thereafter, the Collector has to decide under Section 9 of the Act whether there is owner who claims the treasure to be his. If the treasure is found to be hidden for a period exceeding 100 years from the date it was found, the Collector can declare the said treasure to be ownerless. Then; according to the subsequent provisions of the Act, the treasure is to be divided between the finder and the owner of the land. However, there is no provision in the Act under which Government can claim the said treasure if the same is found from a private property.
12. Mr. Trivedi for the petitioner has not disputed the finding of the Collector that the treasure is ownerless. He, however, submits that in the instant case the Collector has started inquiry without waiting for the notice as required under Section 4 of the Act, since the petitioner himself has deposited the treasure before the Police Officer, and the Police Officer in turn has conveyed the said fact of the deposit of the treasure by the petitioner and the labourers to the Collector, it can be said that the Col lector got notice through the petitioner. In my opinion, this argument is a bit far-fetched. However, one thing is certain that neither the Collector nor the Special Secretary has accepted the petitioner as a finder. The decision of the Collector is very specific on this point. The Collector, however, has not given any definite finding in respect of the claim of the petitioner as the owner of the land.
13. The Special Secretary has in his order observed as under:
As to the first point, the facts of the case indicate that the appellant (petitioner) was not the finder of the coins, but the labourers who were excavating the foundation in his own land found these coins on the eastern side of the building: of the appellant..As appellant Shri Bhaktibhai Gopaiji Bhakta has not given a notice to the Collector under Section 4 of the Act, he cannot be deemed to be the finder of the treasure even though the P.S.I. Mahuva on an anonymous application had got these coins from the appellant as well as his labourers. Therefore, appellant Shri Bhaktibhai Gopaiji Bhakta cannot be given benefits of being the finder of the treasure.
Then in the last paragraph the Special Secretary has observed:.In fact, in this case the finders of the treasure were labourers who have not claimed under the respective provisions of the Act. Therefore, there was nothing wrong in the order of the Collector who has, taking into account the provisions of Sections 21 and 22 of the Act, forfeited the treasure to the State.
These observations, in my opinion, are totally confusing and they cannot be said to be a finding at all when the Special Secretary is dealing with a very important right of the party who has found the treasure.
14. The next contention of Mr. Trivedi is that under Section 12 of the Act, the Collector was bound to consider the petitioner as an owner, since his claim has not been disputed by anybody, and the Collector himself could not dispute the same. Said sec, 12 of the Act reads:
12. When a declaration has been made as aforesaid in respect of any treasure, and only one person other than the finder of such treasure has so appeared and claimed, and the claim of such person is not disputed by the finder, the Collector shall proceed to divide the treasure 'N between the finder and the person so claiming according to the following rule....
15. Now, it is an admitted position that even if the labourers are accepted as finders', they have not disputed the claim of the petitioner that the land was in possession of the petitioner and me treasure was found while digging the foundation of the house of the petitioner. Nobody else has come forward to claim ownership of the land except Balwantrai Desai, whose claim is rejected. There is no dispute regarding the ownership of the land of the petitioner, though sale-deed is not produced by the petitioner. If any other person was claiming the ownership of the land in question he ought to have appeared before the Collector on the publication of the notification by the Collector. If the Collector had any doubt regarding the ownership or if he considered any other person as owner of the said land, then under Clause (b) of Section 5 of the Act he was bound to serve on such person a special notice in writing to that effect. He has not served any notice to Rasvindra Dahyabhai Desai or any other person. Under these circumstances, it is not possible to accept the finding of the Col lector or the Special Secretary, so far as possession and/or ownership of the land in question is concerned. If the Collector had still any doubt regarding the ownership of the said land, he could have asked the parties to go to a Civil Court for determination of their rights, by relying upon the provisions of Section 13 of the Act. In the instant case, so far as Survey No. 217 is concerned, only the petitioner has claimed ownership thereof and no other person has claimed it. In the circumstances, the Collector was bound to consider the petitioner as the owner of the land in question from where the treasure was found. I, therefore, hold that the petitioners is entitled to one-forth of the treasure as provided in Section 12 of the Act.
16. So as far as the claim of the petitioner in respect of his right as a finder is concerned, it cannot be entertained because even if he is held to be a finder, he has not given any notice under Section 4 of the Act to the Collector and, therefore, that right of his will be forfeited to the Government under Section 20 of the Act. In that view of the matter, no purpose will, be served to reverse that finding of the authorities below.
17. In the result, the petition is partly allowed. The decisions of the authorities below are quashed and set aside, and they are directed to give one-fourth of the treasure to the petitioner with interest at the rate of 6 per cent from the date of the judgment of the Collector till payment. The Collector is directed to make the payment to the petitioner as aforesaid within 8 weeks from the date of the receipt of the writ of this Court. Rule is modified to that extent. There shall be no order as to costs in this petition.