TaxTMI 
TaxTMI 
1985 (4) TMI 320
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....rnment Advocate, O.P. Sharma and Ajit Bhandari are not present in the court and for this reason the case has been handed over to Mr. Garg when a panel lawyer is in fact, within a short space of time Mr. Khan, prepared the case and assisted the court to the utmost satisfaction and raised number of technical pleas. I think it proper to express my appreciation for Mr. Khan and would like that in future at least he should see that proper assistance is given by his colleagues to the court and the cases of the State Government do not go in default for not putting the case properly. 2. This appeal has been directed against the judgment and decree passed dated 13th November, 1972, passed by the learned District Judge, Alwar, dismissing the suit of the plaintiff-appellant. The plaintiff-appellant has filed a suit against the State of Rajasthan for compensation for the use and occupation of the disputed property. It is an admitted position that the final inventory of the property of His Highness of Alwar was prepared. Ex. A/5 relates to the disputed property. Under the covenant the disputed property was considered as private property with some conditions. The relevant portion runs as unde....
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....bsp; which the Workshop and the Offices are housed at present and four garages will continue to remain in possession and use of the State so &....
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....he state Ministry about the same has been mentioned in the same list, which runs as under: Ancestral. The Vinay Vilas Palace Building will however remain in the possessions and use of the State so long as it is required by Government for educaiion purposes. During this period the Building will be maintained by the State and the Garden by the Ruler. The Building in which the Workkshop and the Office are housed at present and four garages will continue to remain in possession and use of the State so long as they are required for the purpose. 6. On behalf of the plaintiff PW 2 Madan Singh and PW 3 K.N. Bhargava have been produced. Madan Singh (PW 2) has stated that the value of the property is very high. It can fetch a rent of Rs. 6,000/- to Rs. 7,000/- per month and casts to Rs. 26 & 30 lacs. PW3 K.N. Bhargava was formerly the Chief Engineer of the Rajasthan State in Public Works Department. He has given the valuation of the disputed property after preparing its plan. He issued the certificate Ex. 3 in his own hand and has signed it. 7. On behalf of the defendant, one witness DW/1 R.C. Jain has been produced. 8. It will not be out of place to mention here that His Highnes....
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....nbsp; Decision of the States Ministry ----------------------------------------------------------------------------------------------------- City Palace including Ancestral. The portion of the build- adjoining building ing at present in use by the State for administrative purpose or for  ....
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....nbsp; practicable date. The State will bear the maintenance cost of the portion used by it. Any addition or alternation in the portion &nbs....
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....e Supreme Court in Sawai Tej Singhji v. Union of India . Their Lordships of the Supreme Court held that Article 363 of the Constitution bars the jurisdiction of all courts in any dispute arising out of any agreement which was entered into or executed before ? he commencement of the Constitution by any Ruler of an Indian State to which the Government of India was party. Their Lordships further held that 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. 11. Mr. R.M. Lodha, counsel for the appellant, has submitted before me that Article 363 does not apply in the facts and circumstances of the case. He submits that his suit is based on the Covenant Ex, A-5, which is the foundation of his rights. He further submits that there is no dispute so far as the Covenant is concerned. The dispute is about the interpretation of the Covenant and, for this reason Article 363 of the Constitution of India does not apply in the facts and circumstances of the case. 12. I have given my thoughtful consideration to the riv....
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....o show that when the representations, if any, were made. It is an admitted position that the Maharaja of Alwar executed the sale-deed on 10th October, 1960 in favour of Her Highness of the State of Alwar. The Covenant had been entered into in the year 1949 and, for 11 years the property remained with His Highness as owner of the property. There is no allegation that His Highness ever demanded the rent or compensation for use of occupation of the suit property. There is no reference also in the sale-deed Ex. 2 that Maharaniji will be entitled to get compensation from the State of Rajasthan. Thus, the past conduct shows that the matter has been agitated at a very late stage, may be after 2t years and, no compensation has been claimed by the plaintiff, or the predecessor-in-title earlier. In the facts and circumstances of the case, and looking to the past conduct of the plaintiff and his predecessor-in-title it cannot be said that there is no dispute at all in the matter of interpreting the Covenant Ex. 5. Thus, the defendants have succeeded in making out a prima facie case of their defence. 14. Apart from that, the question arises why a specific reference has not been made in the ....
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....ke compensation to the former in respect of or restore, the thing so done or delivered. 18. The first ingredient of Section 70 of the Contract Act is that a person lawfully does anything for another person whether what has been done by a person has been done for another within Section 70 of the Contract Act is always a question of fact. The test is, whether the person who is acting holds such a position in relation to the other as to raise expressly or by a reasonable implication an inference that by the act done for the other person he could be entitled to look for consideration for it from the other person for whom it was done. It is an admitted position that the Covenant was entered into by the Union of India with the erstwhile ruler of Alwar State. The former State of Rajasthan was not a party in the matter of Covenant. The State of Rajasthan could have taken the view that the building was used since 1930 for the educational purpose, especially for running of College by the erstwhile State of Alwar & as such, it will fall within the purview of Article 295 of the Constitution of India But this question need not be decided as from a perusal of Section 10 itself it is clear tha....
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....n so long as it is required by the defendant. In the instant case, the plaintiff has not come with the case that he has allowed the State of Rajasthan to continue in occupation for the use as educational institution. In the instant case, there is no privity of contract between the parties and whatever was a contract or a covenant it was with the Union of India and the ex-ruler of the erstwhile State of Alwar. Their Lordships were considering the provisions of Section 70 of the Contract Act and, have considered the written statement filed by the defendant in the said case reported in Bhagavada v. PS. Soma Iyer (supra). In para 4 of the written statement in the said case, the defence was that they had only asked for some thing and, that was granted by the plaintiff. Their Lordships interpreted the provisions of Section 70 of the Contract Act and came to the conclusion that from these facts it cannot be inferred that they were allowed to occupy building free of any obligation to pay rent. The word ''deliver" is wide enough and it may in some cases include symbolic delivery or physical delivery. 19. The word "delivery" in purusance of sale under Section 16 Bombay Weights and....
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..... , That means, the delivery must be a delivery of a nature creating a right in favour of the person to make the property delivered and the person who delivers the property loses the right. In the instant case, it is an admitted position that the College was being run by the erstwhile State of Alwar since 1930 and the property was in possession of the erstwhile Alwar State since 1930 and the erstwhile State of Alwar was running, managing and controlling the educational institution. 20. In Bhikhraj v. The State of Bihar , their Lordship of the Patna High Court were considering the provisions of Section 70. Their Lordship held that a thing may be delivered in pursuance of a contract and if will have to be governed by the terms of that contract. Mere delivery of a thing irrespective of its context bring in the aid of Section 70 for the deliverer, fn B.N. Elias and Co. Ltd. v. State of West Bengal , their Lordships of the Calcutta High Court were considering the provisions of Section 70. They held that where goods are delivered pursuant to a request 70 does not apply. Plaintiff's goods in the said cases were delivered in pursuant to a request. In order to attract the provisions ....
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....ngredient of delivery is missing and for this reason also Section 70 of the Contract Act will not apply. 22. The second ingredient, "in doing the said thing or delivering the said thing, he must not intend to act gratuitously" has not been established by the plaintiff to the satisfaction of the Court. The Court below has rightly held so. From a perusal of the covenant, which was entered into by way of settlement, there is no reference of compensation or rent to be paid to the plaintiff or his predecessor. When a settlement takes place, if the intention is otherwise, it is always mentioned in specific terms in the covenant or the agreement. From a perusal of the covenant it can safely be said that it was done gratuitously and the State Government was allowed to run the educational institution so long as it is required and it was not required to pay rent or compensation. Apart from interpreting the covenant, we can take the aid of the previous conduct of the parties. Before entering into the agreement or covenant, no rent or compensation was paid to the ruler of the erstwhile State of Alwar & the educational institution was running since 1930. The merger took place in the year 194....