SUPREME COURT OF INDIA
Dr. Karan Singh
Vs
State of Jammu and Kashmir
Civil Appeal Nos. 5943-5945 of 1997
(Y. K. Sabharwal and A. S. Lakshmanan)
13/04/2004
JUDGMENT
ORDER
1. The main issue to be determined in these appeals is whether 563 articles
lying in 'Toshakhana' (Treasury of the State of Jammu and 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.
2. 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 i.e. 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.
3. 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.
4. 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 been given to the State".
5. 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 vs. State of Jammu
and Kashmir and another). In terms of this decision, the inspection was carried
out and report submitted to the High Court.
6. 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 hierlooms in the custody of
Toshakhana, Srinagar (563 items) are the personal of the appellant.
7. 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 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.
8. 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.
9. 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-under
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.
10. 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.
11. At the outset, we may not that there has never been any declaration that
the articles in question were private properties of Maharaja Hari Singh or that
of the appellant.
12. With the aforesaid factual backdrop, the questions that arise for
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:
13. 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.
14. 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 himself similar instrument
which wa entered into or executed before the commencement of this Constitution
by any Ruler of a 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 –
(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 this Majesty or the Government of the Dominion of India as the
Ruler of any Indian State." *
15. Interpreting the aforesaid Article in H.H. Maharajadhiraja Mahdav Rao
Jivaji Rao Scindia Bahadur of Gwalior ete vs. Union of India and Anr. ),
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
the those agreements, even before the draft of the Constitution was finalized.
Some of 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 Constitution
which are directly linked with the Merger Agreements." *
16. 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." *
17. In Colonel His Highness Sawai Tej Singhji of Alwar vs. Union of India and
Anr. , 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." *
18. Again in Union of India vs. Prince Muffakam Jah and others (II) 5), while giving reasons for rejection of intervention
application that had been field by the interveners claiming to be
public-spirited citizens and urging that there was a clear conceptual division
bench 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 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." *
19. At this stage it would be apposite to notice the decision of this Court in
Kunwar Shri Vir Rajendra Singh vs. Union of India and others, 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 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 or 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 or a State as a privy purse shall be charged on and paid out of the
consolidated fund of India. The privy pursue 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."
*
20. 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
21. 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 vs. Sears (6 AD & E469) wherein Lord Denman,
CJ. 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 as to alter his own previous position, the former is concluded from averting against the latter a different state of things as existing at the same time; " * (See: Bigelow on Estoppel, pp.606, 607).
22. In Mitra Sen Singh and other vs. Mr. Janki Kuar and other 1924
AIR(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." *
23. In Dhiyan Singh and Anr. vs. Jugal Kishore and Anr. 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." *
24. In Gyarsi Bai and other vs. Dhansukh Lal & others), 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
25. In Sha Mulchand and Co. Ltd. (in liquidation) vs. 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." *
26. In the same decision the Supreme Court also made it clear that
"A man who has a vested interest and in whom the 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
27. in Municipal Corporation of Greater Bombay vs. Dr. Hakimwadi Tenants'
Association and other 0), 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." *
28. For the purpose of the present case, the principles laid down in Provash
Chandra Dalui and Anr. Biswanath Banerjee and Anr. ) 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.
29. 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 appellant, the proper opportunity arose only
in theyear 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. Maharaja 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 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 Rules, 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." *
30. 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.
31. Reliance has been placed on Shri Kishori Lal vs. Mst. Chaltibai ]
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 vs. 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." *
32. Again in Bharat Singh & Anr. vs. Bhagirathi [ ], 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." *
33. Further reliance was placed on Chikkam Koreswara Rao vs. Chikkam Subba Rao
& Ors. [ ] 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." *
34. 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 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.
35. 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 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." *
36. 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. vs. 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 bui8lding, 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.
37. 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.