Case: Colonel His Highness Sawai Tej Singhji, Maharaja of Alwar Vs. Union of India and Another

KOSHAL, J.1. The facts forming the background to this appeal by certificate granted by the High Court of Rajasthan against its judgment dated the 29th April 1968, in so far as they are undisputed, may be stated in some detail. On the 28th February 1948, the Rulers of the erstwhile States of Alwar, Bharatpur, Dholpur and Karauli entered into a Covenant (hereinafter referred to as the Matsya Covenant) agreeing to merge their States into one State known as the United State of Matsya which was to come into being on the 1st of April 1948 with the Ruler of Dholpur as its Raj Pramukh. Article VI of the Covenant provided that the Ruler of each Covenanting State shall, as soon as may be practicable and in any event not later than the 15th March, 1948, make over the administration of his State to the Raj Pramukh and that thereupon all rights, authority and jurisdiction belonging to such Ruler which appertained or were incidental to the Government of his State. shall vest in the United State of Matsya.Article XI of the Covenant provided for the private properties of the Ruler and ran thus:"1. The Ruler of each Convenanting State shall be entitled to the full ownership, use and enjoyment of all private, properties (as distinct from State properties) belonging to him on the date of his making over the administration of that State to the Raj Pramukh."2. He shall furnish to the Raj Pramukh before the 1st May, 1948, an inventory of all the immovable properties, securities and cash balances held by him .16 such private property."3. If any dispute arises as to whether any item of property is the private property of the Ruler or State property it shall be referred to such person as the Government of India may nominate an d the decision of that person shall be final and binding on all parties concerned."The United State of Matsya came into being as stipulated in the Matsya Covenant on the 1st of April 1948 and during the same month the Ruler of Alwar, who is the appellant before us, furnished to the Raj Pramukh an inventory of all the immovable properties, securities and cash balances held and claimed by him as his private properties.On the 11th of April 1948, the Rulers of ten States, namely, Banswara, Bundi, Dungarpur, Jhalawar, Kishengarh, Kotah, Mewar, Partabgarh, Shahpura and Tonk entered into a Covenant agreeing to merge them into one State named the United State of Rajasthan. That Covenant was superseded by another dated the 10th of March 1949 (hereinafter called the Rajasthan Covenant) through which the United State of Rajasthan was to consist of the said ten States as also of four others, namely, Bikaner, Jaipur, Jaisalmer, and Jodhpur, with the Ruler of Jaipur as the Raj Pramukh. Clause (c) of Article I of the Rajasthan Covenant defined the expression "new Covenanting State" to mean any of the said four States. Article II of the Covenant last mentioned provided that the United State of Rajasthan would include any other State, the Ruler of which entered into an agreement with the Raj Pramukh, with the approval of the Government of India? to the integration of that State with the United State of RajasthanArticle XII of the Rajasthan Covenant provided:"(1) The Ruler of each Covenanting State shall be entitled to the full ownership, use and enjoyment of all private properties (as distinct from State properties), belonging to him on the date of his making over the administration of that State to the Raj Pramukh of the former Rajasthan state or as the case may be, to the Raj Pramukh of the United State under this Covenant." (2) If any dispute arises as to whether any item of property is the private property of the Ruler of a Covenanting State other than a new Covenanting State, or is State property, it shall be referred to such person as the Government of India may nominate in consultation with the Raj Pramukh, and the decision of that person shall be final and binding on all parties concerned: "Provided that no such dispute shall be so referable after the first day of May, 1949."(3) The private properties of the Ruler of each new Covenanting State shall be as agreed to between the Government of India in the States Ministry and the Ruler concerned, and the settlement of pr operties thus made shall be final."2. On the 1st of May 1949, the Rulers of the States of Alwar, Bharatpur, Dholpur and Karauli which were the constituent States of the United State of Matsya, entered into an agreement (hereinafter called the Amending Agreement) with the Raj Pramukh of the United State of Rajasthan merging with four States into it with effect from the 15th of May 1949 in abrogation of the Matsya Covenant. While subscribing to the Amending Agreement the Ruler of Dholpur acted not only in his capacity as such but also as the Raj Pramukh of the United State of Matsya. Article IV of that Agreement effected amendments in the Rajasthan Covenant so as to make it applicable to the said four States with effect from the date last mentioned. No charge, however, was made in the provisions of clause (c) of Article I of Article XII of the Rajasthan Covenant.On the 14th of September 1949, Mr. V. P. Menon of the Ministry of States, Government of India, wrote the following letter to the Ruler of Alwar:"My dear Maharaja Sahib,"Your Highness will recall that the inventory of immovable properties, securities and cash balances furnished by Your Highness in accordance with Article-XI of the Covenant for the formation of the United State of Matsya was discussed with Your Highness at New Delhi on the 9th and 10th April, 1949. I now forward for Your Highnesss information a copy of t he final inventory of Your Highnesss private properties. It has the approval of the Government of India in the Ministry of States."2. The following claims of Your Highness and the counter-claims of the former Matsya Government are still under consideration and the decision will be communicated to Your Highness as soon as possible.(1) cash balance of the Alwar State treasury;(2) claim for Rs. 4, 82, 520 as arrears of Privy Purse of Your Highness for 6 years from 1936-37 to 1942-43."3. Your Highness will appreciate that the settlement of the inventory is an integral part of an over-all agreement in respect of all outstanding matters of dispute and does not stand by itself."With kind regards,"Yours sincerely,Sd/-"(V. P. Menon)"This letter was accompanied by a copy of the "final inventory which listed 32 items. Reproduced below is the item at Serial No. 1 of that inventory:------------------------------------------------------------"S. Description of property. Decision of the StateNo Ministry.------------------------------------------------------------1. City Palace including adjoiningbuilding. . . . . . Ancestral. The portion ofthe building at presentin use by the State foradministrative purposesor for Museum andImperial Bank willcontinue to be so usedtill such time asrequired. Therequirements of the Statein future will not be ofthe same order as todayand every effort will bemade to release theaccommodation at presentoccupied in the Zenana &Mardana Mahals at theearliest practicabledate. The State will bearthe maintenance cost ofthe portions used by it.Any addition oralteration in the portionused by the State willrequire the prior consentof His Highness andshould be carried out atState expense."------------------------------------------------------------Thereafter, correspondence went on between the Ministry of States and the Ruler of Alwar and on the 24th September 1952 the later received from the former a written communication dealing with 26 items of properties. The opening clause of Para 2 of the letter stated:"2. The Government of India have carefully considered all the outstanding questions in respect of your High Courts private properties, in consultation with the Rajasthan Government, and their decisions in respect thereof are as follows:-"The description of each item covered by the letter was followed by t he decision in respect thereof That part of the letter which deals with item 26 is set down below:"(26) City Palace including adjoining buildings:The City Palace with the adjoining buildings, comprising of the Jagir office, Cen tral Record, lmperial Bank, Treasury, Gandhi National School etc. will be your Highnesss ancestral property. The secretariat building will however be State 1) property.This decision was reiterated in an office Memorandum issued by the Government of Rajasthan in the Political Department on the 30th of December 1952. Through a letter dated the 14th of October 1959 proceeding from his Private Secretary and addressed to the Chief Secretary, Ministry of Home Affairs, Government of India. the Ruler of Alwar claimed rent for three properties known as the Secretariat building, Daulat Khana building and Indra Viman Station adjoining the City Palace and the bungalow at Sariska, which were in the occupation of the Rajasthan Government. The claim was made on the ground that all the four properties had been declared to be the private properties of the Ruler in the inventory appended to the letter dated the 14th September 1949 mentioned above. The claim was rejected b y the Ministry of Home Affairs which asserted in its letter dated the 24th of December 1959 that the four properties in question had not been recognized as the private properties of the Ruler. The claim was reiterated by the Ruler through a lett er issued by Shri Gopesh Kumar Ojha, his Legal &Financial Adviser, but the name was again turned down by the Ministry of Home Affairs through their letter dated the 6th/8th of December 1960 in which the position taken was:"The Statement regarding the extent of your Private Property rights in the City Palace area made in our letter dated 24-12-59 are based upon the decision reached in March 1952 after discussion with your Highness and we regret that they cannot now be reopened."3. It was in the above background that the Ruler of Alwar filed two suits, being suits Nos. 4 and 5 of 1963, in the court of the District Judge, Alwar. In Suit No. 5 the prayer made was that the three properties known as the Secretariat building, Daulat Khana building and Indra Viman Station be declared to be the private properties of the plaintiff and that the State of Rajasthan be ejected therefrom, or, in the alternative, be ordered to pay rent at a specified rate. A decree for 36, 000% was also claimed for mesne profits. In suit No. 4 of 1963, the Claim was that the plaintiff was entitled to rent or mesne profits in respect of a building forming part of the Mardana Palace.4. Both suits were resisted by the Union of India and the State of Rajasthan who were joined as the two defendants to each of them and it was claimed inter-alia that the provisions of article 363 of the Constitution of India were a complete b ar to their maintainability.5. The two suits were transferred by me High Court of Rajasthan to itself and the question of their maintainability was mooted before it with reference to the provisions of article 363 of the Constitution 1 which states:(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 Indian State and to which the Government or 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 recognised 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 per son recognised before such commencement byHis Majesty or the Government of the Dominion of India as the Ruler of any Indian State.6. The High Court proceeded to determine whether the dispute in suit No. 5 of 1963 was one arising out of an agreement such as fell within the ambit of article 363 (as was contended by the defendants) or was merely a one-sided decision of the Government of India and, therefore, outside the purview of the article as was asserted by the plaintiff. It held that the "decisions" contained in the latter dated the 14th of September 1949 had really resulted from an agreement between the Ministry of States and the plaintiff, that the extent of the building adjoining the City Palace was not to be found with precision in the inventory appended to the said letter, that consequently there was a real dispute between the parties whether the suit property was included in the expression "adjoining building" and that the adjudication of such a dispute was barred by the provision of article 363 of the Constitution. Suit No. 5 of 1963 was, therefore, dismissed, but with no order as to costs. In regard to suit No. 4 of 1963, however, the High Court held that the property in dispute was clearly a part of the City Palace itself as it was comprised in the Mardana Mahal that the dispute was altogether illusory in view of the fact that right up to the 8th of December 1960, the Government of India had been taking the stand that the disputed property was the private property of the plaintiff, that the dispute was consequently not barred by the provisions of article 363 of the Constitution, and that the suit, there fore, deserved to be decided by the District Judge on merits. In the result, suit No. 4 of 1963 was remitted to the trial court for decision according to law.7. It is the judgment of the High Court in suit No. S of 1963 alone that is challenged in this appeal.8. Mr. B. D. Sharma, learned Counsel for the appellant Ruler, has vehemently contended that the letter dated the 14th December 1949 was not the result of an agreement between the plaintiff and the Government of India and that, on the other hand, it was a decision arrived at in pursuance of clause (3) of Article XI of the Matsya Covenant. In support of this contention it was pointed out that the letter was issued as a sequel to the inventory furnished by the plaintiff under clause (2) of that Article and that the operative part of the inventory appended to the letter is headed "decision of the States Ministry" which, according to learned Counsel, clearly negatives an agreement. It was further urged that even the Rajasthan Covenant did not envisaged any agreement in so far as the plaintiff was concern cd because he was not the Ruler of a "new Covenanting State" with in the meaning of that expression as used in clauses (2) and (3) of Article XII thereof, that it was clause (2) of that Article which governed him and which again provided for a decision being given on disputes relating to properties and that the letter dated 14th September 1949 must still be construed as a decision if the Matsya Covenant was held to be inapplicable. A careful examination of the material on the record, however, clearly makes out that the contention is without substance as we shall presently show.9. It is no doubt true that the plaintiff had furnished the inventory of the properties held by him in accordance with Article XI of the Matsya Covenant as is stated in the opening paragraph of the letter dated the 14th of September 1949. It further cannot be gain-said that the third column of the inventory to that letter was headed "decision of the State Ministry". These two factors, without more, might have gone a long way to support the case propounded on behalf of the plaintiff, but they are sought to be used out of context as is clear from a perusal of the entire letter from which it can be safely spelt out that the so-called "decision" was nothing but an agreement arrived at between the Government of India and the plaintiff. It is pertinent that the letter mentions that the inventory furnished by the plaintiff was discussed with him at New Delhi on the 9th and 10th of April 1949 and then states that a copy of the final inventory of the plaintiffs private properties, which had the approval of the Government of India in the Ministry of States, was forwarded to him. Now, under clause (3) of Article XI of the Matsya Covenant as also clause (2) of Article XII of the Rajasthan Covenant no approval of the Ministry of State s was called for. In fact, what each of those clauses provided was that if any dispute arose as to whether any item of property was the private property of the Ruler concerned or of his erstwhile State, it was to be referred to such person as the Government of India might nominate, and the decision of that person was to be final and binding on all parties concerned. Now, it is not the case of the plaintiff that the Government of India nominated a person to whom the dispute was to be referred; nor is it claimed by him that such a person gave any decision. The contents of the letter, therefore, are not at all relateable to those of either of the two clauses just above-mentioned. On the other hand, they clearly indicate that the so-called "decisions" of the Sates Ministry contained in the inventory appended to the letter formed really the record of the agreement arrived at between the Ministry of States and the plaintiff as a result of negotiations held on the 9th and 10th of April 1949. In this connection, reference may pointedly be made to paragraph 3 of the letter which bears repetition:"3. Your Highness will appreciate that the settlement of the inventory is an integral part of an overall agreement in respect of all outstanding matters of dispute and does not stand by itself." This paragraph talks of "the settlement of the inventory" which was to be an integral part of an "over-all agreement in respect of all outstanding matters of dispute" and was not to stand by itself. In our opinion, the paragraph is a clincher against the plaintiff and indicates without any shadow of doubt that what the letter said was that all the disputes regarding the property of the Ruler were to be settled by an over-all agreement, that the contents of the inventory appended to the letter merely recorded the settlement between the plaintiff and the Ministry of States and that even those contents we re not to be regarded as a final settlement of the matters dealt with therein unless they formed part of an agreement embracing all items of property.10. It may be noted here that the Matsya Covenant had been abrogated with effect from the 1 5th May 1949 by the Rajasthan Covenant as modified by the Amending Agreement and there was thus no question of any decision being given after that date under clause 3 of Article XI of the Matsya Covenant and that the only surviving provision und er which disputes regarding property owned by the plaintiff could be determined after the 15th of May 1949, was Article XII of the Rajasthan Covenant. It is true that the expression "new Covenanting State" as defined in clause (c) of Article I of tha t Covenant meant only any of the four States of Bikaner, Jaipur, Jaisalmer and Jodhpur, that the definition was not amended by any provision of the Amending Agreement, so that the State of Alwar could not be regarded as a "new Covenanting Sta t. " for the purpose of clause (3) of Article XII of the Rajasthan Covenant and that the clause of that Article in accordance with which disputes relating to property claimed by tho Ruler of Alwar as his private property were to be determi ned was clause (2) which provided for their decision by a person nominated by the Government of India in that behalf. The fact remains, however, that no such person was ever nominated and that the letter dated the 14th September, 1949, cannot be con strued (for reasons already stated by us) as laying down a decision of any such person. What appears to have happened is that instead of following the course indicated in clause (2) last mentioned and having the disputes referred for decision to a person nominated by the Government of India, the parties (the Government of India and the appellant) decided to adopt the method of mutual agreement to settle those disputes-a method which always remained open to them, notwithstanding the Matsya Covenant and the Rajasthan Covenant. Such mutual agreement could, by no stretch of imagination be regarded as a decision by a person nominated by the Government of India either under clause (3) of Article XI of the Matsya Covenant or clause (2) of Article XII of the Rajasthan Covenant and must be deemed to be nothing more or less than an agreement simpliciter even though it was labelled as a "decision of the States Ministry" in the inventory appended to the letter dated the 14th September, 1949.11. Another contention raised by Mr. Sharma was that even if the letter dated the 14th September, 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 dispute 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 the 14th September 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 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.12. The only other contention put f orward by Mr. Sharma was based on the contents of column 3 of Item 1 of the inventory appended to the letter dated the 14th September 1949. He drew our attention to the mention in that column of the portions of the adjoining building being occupie d by the State for administrative purposes or for Museum and Imperial Bank and also comprising the Zenana and Mardana Mahals. According to him, this meant that the entire building adjoining the City Palace was held to be the private pro perty of the plaintiff, which finally vested in the plaintiff as from the date of the letter and of which the plaintiff could not be divested by any subsequent decision of the Ministry of States. In this connection, Mr. Sharma urged that the Ministry of States had no power of reviewing a settlement once arrived at and argued that if it was claimed that such a power existed, the determination by a court of the limited question of the power of review would be barred b y the provisions of article 363 of the Constitution. This contention also is of no avail to him. As held above, the agreement dated the 14th September 1949 was not to stand by itself but was to be a part and parcel of an overall agreement embracing all outstanding matters of dispute. It follows that the terms of the agreement contained in the letter were liable to change till a final agreement was reached, and in this view of the matter no finality could be said to attach t o those terms until all the disputes became the subject-matter of an agreed settlement. The terms of the inventory attached to the letter were thus merely tentative, the process of settlement being a continuous one till all the disputes were finally resolved. And the ultimate decision of the Ministry of Home Affairs conveyed in its letter of the 24th of December 1959, not to treat the Secretariat building, Daulat Khana building and Indra Viman Station adjoining the City Palace to be t he private property of the plaintiff, was based upon a mutual agreement between the parties which was reached after discussion in March 1952, as part of an over-all agreement as is evident from the letter of the Ministry of Home Affairs dated the 6th/8th of December 1960.13.

Decision:
0[ds]9. It is no doubt true that the plaintiff had furnished the inventory of the properties held by him in accordance with Article XI of the Matsya Covenant as is stated in the opening paragraph of the letter dated the 14th of September 1949. It further cannot bethat the third column of the inventory to that letter was headed "decision of the State Ministry". These two factors, without more, might have gone a long way to support the case propounded on behalf of the plaintiff, but they are sought to be used out of context as is clear from a perusal of the entire letter from which it can be safely spelt out that the"decision" was nothing but an agreement arrived at between the Government of India and the plaintiff. It is pertinent that the letter mentions that the inventory furnished by the plaintiff was discussed with him at New Delhi on the 9th and 10th of April 1949 and then states that a copy of the final inventory of the plaintiffs private properties, which had the approval of the Government of India in the Ministry of States, was forwarded to him. Now, under clause (3) of Article XI of the Matsya Covenant as also clause (2) of Article XII of the Rajasthan Covenant no approval of the Ministry of State s was called for. In fact, what each of those clauses provided was that if any dispute arose as to whether any item of property was the private property of the Ruler concerned or of his erstwhile State, it was to be referred to such person as the Government of India might nominate, and the decision of that person was to be final and binding on all parties concerned. Now, it is not the case of the plaintiff that the Government of India nominated a person to whom the dispute was to be referred; nor is it claimed by him that such a person gave any decision. The contents of the letter, therefore, are not at all relateable to those of either of the two clauses justOn the other hand, they clearly indicate that the"decisions" of the Sates Ministry contained in the inventory appended to the letter formed really the record of the agreement arrived at between the Ministry of States and the plaintiff as a result of negotiations held on the 9th and 10th of Aprilcontention is also without substance. 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 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 the 14th September 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 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 XIIcontention also is of no avail to him. As held above, the agreement dated the 14th September 1949 was not to stand by itself but was to be a part and parcel of an overall agreement embracing all outstanding matters of dispute. It follows that the terms of the agreement contained in the letter were liable to change till a final agreement was reached, and in this view of the matter no finality could be said to attach t o those terms until all the disputes became theof an agreed settlement. The terms of the inventory attached to the letter were thus merely tentative, the process of settlement being a continuous one till all the disputes were finally resolved. And the ultimate decision of the Ministry of Home Affairs conveyed in its letter of the 24th of December 1959, not to treat the Secretariat building, Daulat Khana building and Indra Viman Station adjoining the City Palace to be t he private property of the plaintiff, was based upon a mutual agreement between the parties which was reached after discussion in March 1952, as part of anagreement as is evident from the letter of the Ministry of Home Affairs dated the 6th/8th of December 1960.13. In view of the conclusions arrived at above, we hold that the "decision" sought to be enforced by the plaintiff is an agreement hit by article 363 of the Constitution and that the High Court was right in dismissing suit No. 5 of 1963 as being not maintainable.