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

2. The appellant is son of Maharaja Hari Singh,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 w.e.f. 26th April, 1961. By ConstitutionAmendment) 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 Governments 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 appellants representative as also a representative of the State Government (See Dr. Karan Singh vs. State of Jammu and Kashmir and another (1986) 1 SCC 541 ). 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 Governments 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 appellants 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 theor 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 thecannot 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.

Reasoning: 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.