Case: Dr. Karan Singh Vs. State Of J&amp;K

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 appellants representation reads as under: "2. The relevant facts appear to be that in response to Government of Indias 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 Patels aforesaid letter of June 9, 1949 and reiterated that the properties mentioned in the Schedule to Maharajas 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. Venkatachars 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.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]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 (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 ofThus, 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.For the purpose of the present case, the principles laid down in Provash Chandra Dalui and Anr. Biswanath Banerjee and 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.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 in1983 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 followingThe correspondence exchanged between the Government of India and Maharaja Hari Singh shows that articles in question were not claimed by theto be his private property.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 articlesto 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 bedifficulties 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.