TaxTMI 
TaxTMI 
2004 (4) TMI 589
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....he 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 ruler ship 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 Aff....
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....ember, 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 ....
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....f Maharaja Hari Singh or that of the appellant. 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: 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 u....
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....y 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" c....
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....t 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 pu....
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.... 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 i....
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....nr. 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....
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....ce 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 subjec....
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....e 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, re....
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.... 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 art....