Full Judgment Text
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CASE NO.:
Appeal (civil) 5943-5945 of 1997
PETITIONER:
Dr. Karan Singh
RESPONDENT:
State of Jammu & Kashmir & Anr.
DATE OF JUDGMENT: 13/04/2004
BENCH:
Y.K. Sabharwal & Dr.AR.Lakshmanan.
JUDGMENT:
J U D G M E N T
Y.K.Sabharwal, J.
The main issue to be determined in these appeals is whether 563 articles
lying in ’Toshakhana’ (Treasury of the State of Jammu & Kashmir) can be
declared as the private property of the appellant or this issue deserves fresh
determination by Government of India or it be referred to arbitration for
adjudication. The background under which the issue has come up for
consideration may first be noticed.
The appellant is son of Maharaja Hari Singh, ex-ruler of Jammu and
Kashmir. An instrument of accession of Jammu and Kashmir was executed by
Maharaja Hari Singh on 26th October, 1947. The articles in question comprising
of jewellery and gold articles etc. were transferred from Toshakhana at Jammu to
Toshakhana at Srinagar on 17th September, 1951. Maharaja Hari Singh died on
26th April, 1961. During his lifetime, Maharaja Hari Singh did not claim the
articles in question as private property. The Government of India, in pursuance of
clause (22) of Article 366 of the Constitution of India, recognized appellant as a
successor to late Maharaja Sir Hari Singh w.e.f. 26th April, 1961. By Constitution
(Twenty-Sixth Amendment) Act, 1971, rulership was abolished w.e.f. 28th
December, 1971. The abolition, however, did not affect the ownership of the
rulers of their private property as distinct from State property.
The appellant made a representation dated 2nd December, 1983 to the
Ministry of Home Affairs claiming that the articles lying in the Toshakhana,
Srinagar, i.e., the heirlooms , wearing apparel , gold and silver utensils and cutlery,
furniture, fixtures and carpets etc. are the property of the ruler family of Jammu
and Kashmir coming from generation to generation since the inception of the
rulership and are his personal property. The Ministry was requested to issue
immediate instructions to the State Government for handing over all the articles to
the appellant.
In February 1984, a writ petition was filed in Jammu and Kashmir High
Court, inter alia, praying for issue of directions to the Union of India, Ministry of
Home Affairs to decide and adjudicate upon the representation dated 2nd
December, 1983. During the pendency of the writ petition, the representation of
the appellant was rejected by the Union of India on 24th September, 1984. In its
communication dated 24th September, 1984 sent to the appellant, the Union of
India, inter alia, noticed that in response to Government’s letter dated 18th May,
1949, Maharaja Hari Singh in his letter dated 1st June, 1949 addressed to late
Sardar Vallabh Bhai Patel, the then Minister of Home Affairs, had sent a list of his
private properties. There is no mention of jewellery or regalia in question in the
said list. The said list of private properties given by the Maharaja Hari Singh was
accepted by the Government of India and duly communicated by letter dated 9th
June, 1949 to Maharaja Hari Singh. It was also stated that "it may incidentally be
pointed out that in your autobiography entitled ’Heir Apparent’ and statements to
the Press, you have acknowledged that the treasure lying in the Toshakhana had
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been given to the State".
In the writ petition, the High Court rejected the application of the appellant
for inspection of the articles. The boxes of jewellery were, however, ordered to be
sealed by order dated 20th July, 1985. This Court, on the appeal of the appellant,
setting aside the order of the High Court, directed opening of those boxes for the
purpose of inspection by the Member, Central Board of Direct Taxes who was to
be accompanied by Director General of Archaelogical Survey of India, Director
Antiques, Director, National Museum and approved valuers of jewellery for
determining the true nature and character of the same and whether any and, if so,
what items constitute heirlooms articles of personal use of the appellant and his
family. The inspection was directed to be taken in the presence of the appellant’s
representative as also a representative of the State Government (See Dr. Karan
Singh v. State of Jammu & Kashmir & Anr. [(1986) 1 SCC 541]. In terms of this
decision, the inspection was carried out and report submitted to the High Court.
The appellant amended the writ petition and sought quashing of the
Government’s decision as contained in the communication dated 24th September,
1984. Since the Government had also rejected the application of the appellant
seeking review of its decision dated 24th September, 1984, the appellant also
sought quashing of the rejection of his review application dated 9th October, 1984.
Further, a declaration was sought that the heirlooms in the custody of Toshakhana,
Srinagar (563 items) are the personal properties of the appellant.
The writ petition was partly allowed by a learned Single Judge of the High
Court. The appellant was declared rightful owner of ’heirlooms’ consisting of 42
items of jewellery mentioned in appendix ’C’ to the report of the Inspection
Committee appointed by this Court. The State Government was directed to
deliver possession thereof to the appellant. The orders of the Government of
India, rejecting the representation and declining to review the said order were
quashed. The Government of India was directed to reconsider the appellant’s
representation after giving a proper opportunity of being heard to all the parties
involved in the matter with regard to the claim of the items of jewellery mentioned
in appendix ’A’ and ’B’ to the report of the Inspection Committee above referred.
The judgment of learned Single Judge was challenged by the appellant, the
State Government and the Union of India by each filing Letters Patent Appeal, the
appellant claiming that all the articles ought to have been declared as his private
property and the State Government and Union of India claiming that the writ
petition should have been dismissed by the learned Single Judge.
By the impugned judgment, all the three Letters Patent Appeals have been
decided. The Division Bench has held that the appellant has not put forward any
claim much less such claim having been recognized by the Union of India for 30
years and all those years the appellant did not raise his little finger in respect of
these movables. The Division Bench came to the conclusion that looking to the
nature and circumstances and the conduct of the appellant, it is evident that till
1983, no attempt whatsoever was made, either by the ex-ruler or by the appellant,
to claim these properties as private properties. The Division Bench held that either
there was relinquishment of right or waiver voluntarily. The finding of learned
Single Judge in respect of 42 items was reversed. The Division Bench further held
that regard being had to the provisions of Article 363 of the Constitution of India,
any claim arising out of such dispute by the ex-ruler cannot be granted by a
court of law for the purpose of giving relief. The Division Bench has concluded
that the appellant has failed to make a case establishing his right over the valuable
moveables. Resultantly, the appeal filed by the appellant has been dismissed and
appeals filed by the State and the Union of India have been allowed.
Mr. Kapil Sibal, learned senior counsel appearing for the appellant
contends that the Division Bench is in error in coming to the conclusion that the
appellant has abandoned, relinquished or waived his right and in dismissing the
writ petition. On the other hand, supporting the impugned judgment Mr. Raju
Ramachandran, learned Additional Solicitor General appearing for Union of India
and Mr. Altaf H. Naiyak, learned Advocate General of the State contend that the
writ petition was not maintainable in view of bar contained in Article 363 of the
Constitution of India and, even otherwise, the appellant had no right to reopen the
issue after lapse of 30 years besides there being highly disputed questions of fact.
At the outset, we may note that there has never been any declaration that
the articles in question were private properties of Maharaja Hari Singh or that of
the appellant.
With the aforesaid factual backdrop, the questions that arise for
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consideration are :
1. Bar of Article 363 of the Constitution of India to the maintainability of the
writ petition;
2. Whether the appellant is disentitled to relief on applicability of the doctrine
of estoppel, abandonment and waiver;
3. Whether the decision of the Government of India rejecting the
representation deserves to be quashed and declaration granted that the
articles are private property of the appellant or the issue either deserves to
be remitted to Government of India for reconsideration or referred for
adjudication to an arbitrator to be appointed by this Court.
Question No.1: Bar of Article 363 of the Constitution:
The contention urged on behalf of the respondents is that the issue whether
the articles are private or State property arises out of document of accession
entered into by Late Maharaja Hari Singh with the Government of the Dominion
of India and, therefore, the jurisdiction of the courts is barred.
Article 363 of the Constitution which bars interference by courts in disputes
arising out of certain treaties, agreements etc. reads as under:-
"(1) Notwithstanding anything in this Constitution but
subject to the provisions of article 143, neither the
Supreme Court nor any other court shall have
jurisdiction in any dispute arising out of any provision
of a treaty, agreement, covenant, engagement, sanad
or other similar instrument which was entered into or
executed before the commencement of this
Constitution by any Ruler of an Indian State and to
which the Government of the Dominion of India or
any of its predecessor Governments was a party and
which has or has been continued in operation after
such commencement, or in any dispute in respect of
any right accruing under or any liability or obligation
arising out of any of the provisions of this Constitution
relating to any such treaty, agreement, covenant,
engagement, sanad or other similar instrument.
(2) In this article \026
(a) "Indian State" means any territory recognized
before the commencement of this Constitution by his
Majesty or the Government of the Dominion of India
as being such a State; and
(b) "Ruler" includes the Prince, Chief or other
person recognized before such commencement by His
Majesty or the Government of the Dominion of India
as the Ruler of any Indian State."
Interpreting the aforesaid Article in H.H. Maharajadhiraja Madhav Rao
Jivaji Rao Scindia Bahadur of Gwalior etc. v. Union of India & Anr. [(1971) 1
SCC 85], this Court held:
".....But the Constituent Assembly did not want to
open up the Pandora’s box. With Article 363, Article
362 would have opened the floodgates of litigation.
The Constituent Assembly evidently wanted to avoid
that situation. That appears to have been the main
reason for enacting Article 363..... Some of the Rulers
who had entered into Merger Agreements were
challenging the validity of those agreements, even
before the draft of the Constitution was finalized.
Some of them were contending that the agreements
were taken from them by intimidation; some others
were contending that there were blanks in the
agreements signed by them and those blanks had been
filled in without their knowledge and to their
prejudice. The merger process went on hurriedly. The
Constitution-makers could not have ignored the
possibility of future challenge to the validity of the
Merger Agreements. Naturally they would have been
anxious to avoid challenge to various provisions in the
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Constitution which are directly linked with the Merger
Agreements."
It was further observed:
"That is why Article 363 really embodied the
principles of Acts of State which regulated and guided
the rights and obligations under the covenants or
Merger Agreements by incorporating the doctrine of
unenforceability of covenants or Merger Agreements
coming into existence as Acts of State."
In Colonel His Highness Sawai Tej Singhji of Alwar v. Union of India &
Anr. [(1979) 1 SCC 512], this Court held that:
"Another contention raised by Mr. Sharma was that
even if the letter dated September 14, 1949 was held to
evidence an agreement, it was not hit by the provisions
of Article 363 of the Constitution inasmuch as it was
an agreement resulting from the Rajasthan Covenant
which alone, according to him, was the agreement
covered by the article. This contention is also without
substance. Article 363 of the Constitution bars the
jurisdiction of all courts in any disputes arising out of
any agreement which was entered into or executed
before the commencement of the Constitution by any
ruler of an Indian State to which the Government of
India was a party. The operation of the article is not
limited to any "Parent" covenant and every agreement
whether it is primary or one entered into in pursuance
of the provisions of a preceding agreement would fall
within the ambit of the article. Thus the fact that the
agreement contained in the letter dated September 14,
1949 had resulted from action taken under the
provisions of the Rajasthan Covenant, is no answer to
the plea raised on behalf of the respondents that Article
363 of the Constitution is a bar to the maintainability
of the two suits, although we may add, that the
agreement did not flow directly from the Rajasthan
Covenant but was entered into by ignoring and
departing from the provisions of clause (2) of Article
XII thereof."
Again in Union of India v. Prince Muffakam Jah & Ors.(II) [1995 Supp.
(1) SCC 702], while giving reasons for rejection of intervention application that
had been filed by the interveners claiming to be public-spirited citizens and
urging that there was a clear conceptual division between the Nizam’s personal
and private property and the State property, it was held:
"Article 363 bars the jurisdiction of all the courts in
any dispute arising out of any provision of a treaty,
agreement, covenant, engagement, sanad or other
similar instrument which was entered into or executed
before the commencement of this Constitution by any
Ruler of an Indian State."
At this stage it would be apposite to notice the decision of this Court in
Kunwar Shri Vir Rajendra Singh v. Union of India & Ors. [(1970) 2 SCR 631],
where while considering the contention urged on behalf of the petitioner that by
the executive order private properties were handed over to the Ruler, reproducing
the concerned notification of Government of India, this Court held that :
"It is apparent that there is no notification by virtue of
which the Ruler became entitled to private properties.
The notification which recognized the Ruler did not
state that the Ruler thereby became entitled to private
properties of the late Ruler. Mr. Attorney-General
appearing for Union also made it clear that no right to
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property flowed from the Government Order of
recognition of Rulership. It is manifest that the right to
private properties of the last Ruler depends upon the
personal law of succession to the said private
properties. The recognition of the Ruler is a right to
succeed to the gaddi of the Ruler. This recognition of
Rulership by the President is an exercise of political
power vested in the President and is thus an instance of
purely executive jurisdiction of the President. The act
of recognition of Rulership is not, as far as the
President is concerned, associated with any act of
recognition of right to private properties. In order to
establish that there has been an infringement of rights
to property or proprietary rights, the petitioner has to
establish that the petitioner owns or has a right to
property which has been infringed by the impugned
act. In the present case, the petitioner cannot be heard
to say that the petitioner possesses any private property
which has been invaded. The petitioner’s contention
fails for two reasons. First, the recognition of
Rulership by the President does not, as far as the
President is concerned, touch any of the private
properties claimed. Secondly, the petitioner does not
possess any private property which has been effected
by the act of recognition of Rulership. It must be
stated here that as far as the right to privy purse of a
Ruler is concerned, Article 291 of the Constitution
enacts that payment of any sum which has been
guaranteed to any Ruler of a State as a privy purse
shall be charged on and paid out of the consolidated
fund of India. The privy purse is not an item of private
property to which the Ruler succeeds. Counsel for the
petitioner also realized the effect of Article 291 and
did not press the contention of privy purse being a
private property."
Thus, it is evident that any right arising out of or relating to a treaty
covenant, agreement etc. as mentioned in Article 363, is barred to be determined
by any court. The correspondence exchanged between Maharaja Hari Singh and
the Government of India would amount to ’agreement’ within the meaning of
Article 363. In case, the conclusion reached is that the same also covers the
articles in question, the bar of Article 363 would clearly be attracted. But if this
Court comes to the conclusion that these articles are not covered by the said
correspondence, Article 363 would be inapplicable. According to the appellant,
there is no document whereunder the question as to these articles came to be
considered by the Government. According to the Government, the
correspondence of 1949 and letter dated 24th December, 1952 decides the aspect of
private properties. This factual aspect has been considered while examining other
questions.
Question No.2 : Re: Applicability of doctrine of estoppel, waiver or
abandonment
The Division Bench in the impugned judgment, as earlier noticed, has held
that ’either there was relinquishment of right or waiver voluntarily’. Before we
examine the facts to decide this issue, reference may be made to certain decisions
on the aspect of estoppel, abandonment and waiver. The leading case on estoppel
is that of Pickard v. Sears [6 AD & E469] wherein Lord Denman, C.J. in
delivering judgment, inter alia, said :
"His title having been once established, the property
could only be divested by gift or sale; of which no
specific act was even surmised. But the rule of law is
clear that where one by his words or conduct willfully
causes another to believe the existence of a certain
state of things, and induces him to act on that belief so
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as to alter his own previous position, the former is
concluded from averring against the latter a different
state of things as existing at the same time;...." (See :
Bigelow on Estoppel, pp.606, 607)
In Mitra Sen Singh & Ors. v. Mt. Janki Kuar & Ors. [AIR 1924 PC 213 at
214], with regard to estoppel, it was stated :
"There is no peculiarity in the law of India as
distinguished from that of England which would
justify such an application. The law of India is
compendiously set forth in S.115 of the Indian
Evidence Act, Act 1 of 1872. It will save a long
statement by simply stating that section, which is as
follows :
’When one person has, by his declaration, act or
omission, intentionally caused or permitted
another person to believe a thing to be true and
to act upon such belief, neither he nor his
representative shall be allowed, in any suit or
proceeding between himself and such person or
his representative to deny the truth of that
thing’."
In Dhiyan Singh & Anr. v. Jugal Kishore & Anr. [1952 SCR 478] this
Court stated :
"Now it can be conceded that the before an estoppel
can arise, there must be first a representation of an
existing fact as distinct from a mere promise de futuro
made by one party to the other; second that the other
party, believing it, must have been induced to act on
the faith of it; and third, that he must have so acted to
his detriment."
In Gyarsi Bai & Ors. v. Dhansukh Lal & Ors. [(1965) 2 SCR 154], the
principles were reiterated in the following words:
"To invoke the doctrine of estoppel three conditions
must be satisfied : (1) representation by a person to
another, (2) the other shall have acted upon the said
representation, and (3) such action shall have been
detrimental to the interests of the person to whom the
representation has been made."
Abandonment
In Sha Mulchand & Co. Ltd. (in liquidation) v. Jawahar Mills Ltd.
[(1953) SCR 351], this Court stated :
"Two things are thus clear, namely, (1) that
abandonment of right is much more than mere waiver,
acquiescence or laches and is something akin to
estoppel if not estoppel itself, and (2) that mere waiver,
acquiescence or laches which is short of abandonment
of right or estoppel does not disentitle the holder of
shares who has a vested interest in the shares from
challenging the validity of the purported forfeiture of
those shares."
In the same decision the Supreme Court also made it clear that
"A man who has a vested interest and in whom the
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legal title lies does not, and cannot, lose that title by
mere laches, or mere standing by or even by saying
that he has abandoned his right, unless there is
something more, namely inducing another party by his
words of conduct to believe the truth of that statement
and to act upon it to his detriment, that is to say, unless
there is an estoppel, pure and simple. It is only in such
a case that the right can by lost by what is loosely
called abandonment or waiver, but even then it is not
the abandonment or waiver as such which deprives
him of his title but the estoppel which prevents him
from asserting that his interest in the shares has not
been legally extinguished, that is to say, which
prevents him from asserting that the legal forms which
in law bring about the extinguishment of his interest
and pass the title which resides in him to another, were
not duly observed."
Waiver
In Municipal Corporation of Greater Bombay v. Dr.Hakimwadi Tenants’
Association & Ors. [1988 Supp. SCC 55], it was held
"In order to constitute waiver, there must be voluntary
and intentional relinquishment of a right. The essence
of a waiver is an estoppel and where there is no
estoppel, there is no waiver. Estoppel and waiver are
questions of conduct and must necessarily be
determined the facts of each case."
For the purpose of the present case, the principles laid down in Provash
Chandra Dalui & Anr. v. Biswanath Banerjee & Anr. [1989 Supp.(1) SCC 487]
are quite apt. One of the questions that came up for consideration in the said
decision was whether there was estoppel, waiver, acquiescence or res judicata on
the part of the respondents as in earlier proceedings they treated the appellants as
thika tenants before the Controller. It was held that the essential element of
waiver is that there must be a voluntary and intentional relinquishment of a known
right or such conduct as warrants the inference of the relinquishment of such right.
It means forsaking the assertion of a right to the proper opportunity. It was held
that voluntary choice is the essence of waiver for which there must have existed an
opportunity for a choice between the relinquishment and the conferment of the
right in question.
On the touchstone of aforesaid principles, we have to examine facts of the
case in hand to decide whether the right was forsaken. We have to decide whether
there existed an opportunity to Maharaja Hari Singh and/or the appellant to assert
the right but it was not asserted at the appropriate time when there was a proper
opportunity. According to the appellant, the proper opportunity arose only in the
year 1983 when the newspapers reports appeared showing the intention of the
State Government to sell these articles. The appellant did not forsake the assertion
of his right at that time. In fact, he immediately asserted his right by filing a
representation and without even awaiting the decision of the representation by the
Government, he filed the writ petition before the High Court. In our view,
however, it is over simplification of the facts and background of the case. The
claim of the appellant loses sight of the following facts :
1. The correspondence exchanged between the Government of India and
Maharaja Hari Singh shows that articles in question were not claimed by
the ex-ruler to be his private property.
2. Maharaha Hari Singh, in his lifetime, did not claim the articles in question
to be his personal properties.
3. The appellant was recognized as the successor to Maharaja Hari Singh on
his demise in the year 1961. No claim was made till representation dated
2nd December, 1983.
4. Section 5(1)(ivx) of the Wealth Tax Act provides for exemption from
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wealth tax in respect of jewellery and other heirlooms in possession of the
ruler. The exemption was available only where
(a) the ruler’s jewellery had been recognized by the Central Government
as his heirloom before the commencement of the Wealth Tax Act; or
(b) The Central Board of Direct Taxes recognized the ruler’s jewellery
as his heirloom at the time of his first assessment to wealth tax under
the Wealth Tax Act.
The appellant did not make any application to the Central Board of
Direct Taxes to obtain such recognition nor Central Government had
recognized the said articles as heirlooms of the appellant, as required for the
purpose of exemption from wealth tax. The appellant filed an application
claiming exemption under Section 5(1)(ivx) of the Wealth Tax Act in
respect of the articles in question only on 7th February, 1985, after filing of
the writ petition in the High Court.
5. The appellant in his biography entitled "Heir Apparent" has made a
statement to the following effect :
"Again unlike most of other Rulers, my father made a
clear distinction between his private property,
including jewellery and State property. He left family
jewellery, shawls, carpets and Regalia worth crores
with the State Toshakhana (Treasury) which most
others in his place would have appropriated without
turning a hair."
In respect of the aforesaid statement, learned counsel for the appellant,
referring to Sections 17 and 31 of the Indian Evidence Act and certain decisions,
contends that there is no admission abandoning the articles in favour of the State
Government and also that it is open to the appellant to explain the circumstances
under which the same were made.
Reliance has been placed on Shri Kishori Lal v. Mst. Chaltibai. [1959
Supp.(1) SCR 698] where dealing with admissions, this Court stated thus :
"And admissions are not conclusive, and unless they
constitute estoppel, the maker is at liberty to prove that
they were mistaken or were untrue : Trinidad Asphalt
Company v. Coryat [(1896) A.C. 587]. Admissions are
mere pieces of evidence and if the truth of the matter is
known to both parties the principle stated in Chandra
Kunwar’s case [(1906) 34 I.A. 27] would be
inapplicable."
Again in Bharat Singh & Anr. v. Bhagirathi [(1966) 1 SCR 606], on
which reliance was placed by learned counsel for the appellant, this Court held :
"Admissions have to be clear if they are to be used
against the person making them. Admissions are
subjective evidence by themselves, in view of Sections
17 and 21 of the Indian Evidence Act, though they are
not conclusive proof of the matters admitted."
Further reliance was placed on Chikkam Koreswara Rao v. Chikkam
Subba Rao & Ors. [(1970) 1 SCC 558] for the observations to the following
effect:
"Before the right of a party can be considered to have
been defeated on the basis of an alleged admission by
him, the implication of the statement made by him
must be clear and conclusive. There should be no
doubt or ambiguity about the alleged admissions."
In the present case, the reliance on aforesaid decisions is as misplaced as
the argument itself. It has to be borne in mind that the statements made in the
book are not being taken into consideration as conclusive admissions as such but
have been taken as additional circumstance along with other circumstances that
have already been noticed, for determining whether the conduct of the appellant
amounts to waiver and/or abandonment of right in respect of the articles in
question. The appellant has not been declined relief only on account of the
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statements made by him in the autobiography. It may also be noticed that the
material on record further shows that the appellant has been taking from State
Government on temporary loan certain items from Toshakhana by moving
applications from time to time for the said purpose. This conduct of the appellant
is also a relevant circumstance. It is evident that the appellant came out of
slumber only in the year 1983 and took a chance in respect of the articles in
question. Though on the aforesaid facts, the doctrine of estoppel may not be
applicable against the appellant for want of three conditions as laid down in
Gyarsi Bai (supra) but the same cannot be said about abandonment and waiver. It
is not a mere case of latches and standing by the appellant. Firstly the father of
the appellant never claimed the articles to be his private property. After his death
for twenty years the appellant did not take any action. On the other hand he was
occasionally taking articles on loan from Toshakhana. The appellant failed to
assert his right at proper opportunity. Having regard to these facts, the conclusion
of the Division Bench that the appellant has waived and/or abandoned his right in
respect of the articles in question cannot be faulted.
Question No.3: Whether the decision of the Government of India
rejecting the representation deserves to be quashed and
declaration granted that the articles are private property
of the appellant or the issue either deserves to be remitted
to Government of India for reconsideration or referred
for adjudication to an arbitrator to be appointed by this
Court.
The relevant part of order dated 24th September, 1984 passed by the
Government of India rejecting appellant’s representation reads as under:
"2. The relevant facts appear to be that in response
to Government of India’s letter of 18.5.1949, the then
Maharaja of Kashmir in his letter dated 1.6.1949
addressed to late Sardar Vallabhbhai Patel, the then
Minister of Home Affairs and States, had sent a list of
his private properties. There is no mention of
jewellery or regalia in question in the said list. The
aforesaid list of private properties given by the then
Maharaja of Kashmir was accepted by the Government
of India and the acceptance was duly communicated
by letter dated 9th June, 1948 by late Sardar Patel.
3. Later, Shri C.S.Venkatachar, the then Secretary,
Ministry of States, in his letter dated December 24,
1952 addressed to Maharaja Hari Singh, referred to
Sardar Patel’s aforesaid letter of June 9, 1949 and
reiterated that the properties mentioned in the Schedule
to Maharaja’s letter were the private properties of the
Maharaja and would continue to be his private
properties. There is no mention of jewellery or regalia
in question in the said Schedule.
4. On 18th August, 1958, a Notification was issued
by the Ministry of Finance (Department of Revenue)
with regard to exemption of heirloom jewellery from
wealth tax. According to this Notification, the then
rulers were required to obtain recognition of jewellery
as their heirloom, if any, for purposes of exemption
from the Wealth Tax Act, 1957. The declaration was
given in 26 cases by the then Rulers and the jewellery
was exempted from wealth tax subject to certain
conditions laid down in the Wealth Tax (Exemption of
Heirloom Jewellery of Rules) Rules, 1958. The Ruler
of Jammu and Kashmir, however, does not appear to
have made any application under Rule 3 of these Rules
for recognition of jewellery in question as heirloom.
5. Consequent upon the enforcement of the
Constitution (Twenty-sixth Amendment) Act, 1971
with effect from 28th December, 1971, the rulership
was abolished. The question of the jewellery etc.
being required for ceremonial purposes thereafter
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 10 of 10
cannot arise. Para 8 of Shri C.S. Venkatachar’s letter
dated December 24, 1952 reproduced in your letter
does not relate to the jewellery in question and is of no
relevance now.
6. The agreements with regard to the private
properties of the Rulers, once arrived at, are final.
7. It may incidentally be pointed out that in your
autobiography entitled ’Heir Apparent’ and statements
to the Press, you have acknowledged that the treasure
lying in the Toshakhana had been given to the State.
8. Taking all aspects into consideration, the
Government of India regret their inability to accept
your claim to the jewelry and other items lying in
Srinagar Toshakhana."
As already noticed there has never been any declaration that the articles in
question are private properties of the appellant or his father. The correspondence
between Maharaja Hari Singh and the Government does not declare these articles
as private property of Maharaja though some other properties were so declared.
Assuming there is some substance in the claim of the appellant which requires
consideration, then it will depend upon examination of various disputed question
of facts. Such disputed questions cannot be adjudicated except on taking of
evidence. In Dharam Dutt & Ors. v. Union of India & Ors. [2003 (10) SCALE
141], a case of taking over of Sapru House by promulgation of ordinance followed
by the Act, the contention of the writ petitioners was that the building, the library
and all other movables in the Sapru House are owned by the Society and take over
by the Government has deprived the Society of its property without any authority
of law. This Court noticing that Union of India do not admit title of the petitioner
and also noticing that there is not one document of title produced by the
petitioners, held that such highly disputed questions of fact which cannot be
determined except on evidence are not fit to be taken up for adjudication in the
exercise of writ jurisdiction. We see no illegality in the decision of the
Government that was approached by the appellant himself. Therefore, it is not
possible to quash the order dated 24th September, 1984 and direct reconsideration
of the issue by the Government. Realising difficulties in grant of relief in respect
of declaration of articles to be private property of the appellant, Mr. Kapil Sibal
did not seriously press it but at the same time strenuously contended that it was
amply fit case where the issue deserves to be referred for adjudication to the
arbitration of an independent arbitrator. In support, reference has been made by
learned counsel to the report of the inspection team constituted by this Court as
noticed hereinbefore. The contention urged is that the said report at least prima
facie shows that these articles are private property of the appellant and, therefore,
an independent adjudication is called for. The inspection team was constituted
and inspection ordered as interim measure when the writ petition was pending
before the High Court. The report only gives a tentative opinion. It says that the
matter may have to be decided on taking evidence. The prima facie opinion
expressed in the report is not a ground to refer the issue to arbitration for
adjudication in the absence of any agreement requiring reference to arbitration.
Further there is no such claim in the writ petition. Assuming that in an appropriate
case relief may be moulded by this Court and matter referred for adjudication to
arbitration in exercise of powers of this Court under Article 142 of the
Constitution of India, we see no ground, on the facts of the present case, to
exercise such power. The decision in respect of private property taken long time
back cannot be permitted to be reopened without any exceptional grounds which
are none in the present case.
For the aforesaid reasons, we are of the view that no interference is called
for in the impugned judgment of the High Court. The appeals are accordingly
dismissed, however, leaving the parties to bear their own costs.