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CASE NO.: Appeal (civil)  5943-5945 of 1997

PETITIONER: Dr. Karan Singh

RESPONDENT: State of Jammu & Kashmir & Anr.

DATE OF JUDGMENT: 13/04/2004

BENCH: Y.K. Sabharwal & Dr.AR.Lakshmanan.

JUDGMENT: J U D G M E N T

Y.K.Sabharwal, J.

       The main issue to be determined in these appeals is whether 563 articles  lying in ’Toshakhana’ (Treasury of the State of Jammu & Kashmir) can be  declared as the private property of the appellant or this issue deserves fresh  determination by Government of India or it be referred to arbitration for  adjudication.  The background under which the issue has come up for  consideration may first be noticed.   

The appellant is son of Maharaja Hari Singh, ex-ruler 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 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  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.         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 Government’s 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

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been given to the State".         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 appellant’s  representative as also a representative of the State Government (See Dr. Karan  Singh v. State of Jammu & Kashmir & Anr. [(1986) 1 SCC 541].  In terms of this  decision, the inspection was carried out and report submitted to the High Court.         The appellant amended the writ petition and sought quashing of the  Government’s 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 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 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.   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 the ex-ruler or 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 the ex-ruler  cannot  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.         Mr. Kapil Sibal, learned senior counsel appearing for the appellant  contends that the Division Bench is in error in coming to the conclusion that the  appellant has abandoned, relinquished or waived  his right  and in dismissing the  writ petition.  On the other hand, supporting the impugned judgment Mr. Raju  Ramachandran, learned Additional Solicitor General appearing for Union of India  and Mr. Altaf H. Naiyak, learned Advocate General of the State contend that the  writ petition was not maintainable in view of bar contained in Article 363 of the  Constitution of India and, even otherwise, the appellant had no right to reopen the  issue after lapse of 30 years besides there being highly disputed questions of fact.          At the outset, we may note that there has never been any declaration that  the articles in question were private properties of Maharaja Hari Singh or that of  the appellant. With the aforesaid factual backdrop, the questions that arise for

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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 under:- "(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 an Indian State and to  which the Government of 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 \026 (a)     "Indian State" means any territory recognized  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  person recognized before such commencement by His  Majesty or the Government of the Dominion of India  as the Ruler of any Indian State."

       Interpreting  the aforesaid Article in H.H. Maharajadhiraja Madhav Rao  Jivaji Rao Scindia Bahadur of Gwalior etc. v. Union of India & Anr.  [(1971) 1  SCC 85],  this Court held: ".....But the Constituent Assembly did not want to  open up the Pandora’s  box.  With Article 363, Article  362 would have opened the floodgates of litigation.   The Constituent Assembly evidently wanted to avoid  that situation.  That appears to have been the main  reason for enacting Article 363..... Some of the Rulers  who had entered into Merger Agreements were  challenging the validity of those agreements, even  before the draft of the Constitution was finalized.   Some of them were contending that the agreements  were taken from them by intimidation; some others  were contending that there were blanks in the  agreements signed by them and those blanks had been  filled in without their knowledge and to their  prejudice.  The merger process went on hurriedly.  The  Constitution-makers could not have ignored the  possibility of future challenge to the validity of the  Merger Agreements.  Naturally they would have been  anxious to avoid challenge to various provisions in the

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Constitution which are directly 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" 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 September 14,  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 the  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."

       Again in Union of India v. Prince Muffakam Jah & Ors.(II) [1995 Supp.  (1)  SCC 702],  while giving reasons for rejection of intervention application that  had been filed by the interveners claiming to be public-spirited citizens  and  urging that there was a clear conceptual division between the Nizam’s personal  and private property and the State property, it was held: "Article 363 bars the jurisdiction of all the courts 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 an Indian State."

       At this stage it would be apposite to notice the decision of this Court in   Kunwar Shri Vir Rajendra Singh v. Union of India & Ors. [(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 of India, this Court held that :  "It is apparent that there is no notification by virtue of  which the Ruler became entitled to private properties.   The notification which recognized the Ruler did not  state that the Ruler thereby became entitled to private  properties of the late Ruler.  Mr. Attorney-General  appearing for Union also made it clear that no right to

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property flowed from the Government Order of  recognition of Rulership.  It is manifest that the right to  private properties of the last Ruler depends upon the  personal law of succession to the said private  properties.  The recognition of the Ruler is a right to  succeed to the  gaddi of the Ruler.  This recognition of  Rulership by the President 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 purse   shall be charged on and paid out of the consolidated  fund of India.  The privy purse is not an item of private  property to which the Ruler succeeds.  Counsel for the  petitioner also realized the effect of Article 291 and  did not press the contention of privy purse being a  private property."

       Thus, 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.   Question No.2 : Re: Applicability of doctrine of estoppel, waiver or  abandonment

       The Division Bench in the impugned judgment, as earlier noticed, has held  that ’either there was relinquishment of right or waiver voluntarily’.  Before we  examine the facts to decide this issue, reference may be made to certain decisions  on the aspect of estoppel, abandonment and waiver.  The leading case on estoppel  is that of Pickard v. Sears [6 AD & E469] wherein Lord Denman, C.J. in  delivering judgment, inter alia, said : "His title having been once established, the property  could only be divested by gift or sale; of which no  specific act was even surmised.  But the rule of law is  clear that where one by his words or conduct willfully  causes another to believe the existence of a certain  state of things, and induces him to act on that belief so

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as to alter his own previous position, the former is  concluded from averring against the latter a different  state of things as existing at the same time;...." (See :  Bigelow on Estoppel, pp.606, 607)

       In Mitra Sen Singh & Ors. v. Mt. Janki Kuar & Ors. [AIR 1924 PC 213 at  214], with regard to estoppel, 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 in the following words: "To invoke the doctrine of estoppel three conditions  must be satisfied : (1) representation by a person to  another, (2) the other shall have acted upon the said  representation, and (3) such action shall have been  detrimental to the interests of the person to whom the  representation has been made."

Abandonment

       In Sha Mulchand & Co. Ltd. (in liquidation) v. Jawahar Mills Ltd.  [(1953) SCR 351], this Court stated : "Two things are thus clear, namely, (1) that  abandonment of right is much more than mere waiver,  acquiescence or laches and is something akin to  estoppel if not estoppel itself, and (2) that mere waiver,  acquiescence or laches which is short of abandonment  of right or estoppel does not disentitle the holder of  shares who has a vested interest in the shares from  challenging the validity of the purported forfeiture of  those shares."

       In the same decision the Supreme Court also made it clear that  

"A man who has a vested interest and in whom the

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legal title lies does not, and cannot, lose that title by  mere laches, or mere standing by or even by saying  that he has abandoned his right, unless there is  something more, namely inducing another party by his  words of conduct to believe the truth of that statement  and to act upon it to his detriment, that is to say, unless  there is an estoppel, pure and simple. It is only in such  a case that the right can by lost by what is loosely  called abandonment or waiver, but even then it is not  the abandonment or waiver as such which deprives  him of his title but the estoppel which prevents him  from asserting that his interest in the shares has not  been legally extinguished, that is to say, which  prevents him from asserting that the legal forms which  in law bring about the extinguishment of his interest  and pass the title which resides in him to another, were  not duly observed."

Waiver

       In Municipal Corporation of Greater Bombay v. Dr.Hakimwadi Tenants’  Association & Ors. [1988 Supp. SCC 55], it was held  "In order to constitute waiver, there must be voluntary  and intentional relinquishment of a right. The essence  of a waiver is an estoppel and where there is no  estoppel, there is no waiver. Estoppel and waiver are  questions of conduct and must necessarily be  determined the facts of each case."

For the purpose of the present case, the principles laid down in Provash  Chandra Dalui & Anr. 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 arose only in the  year 1983 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 following facts : 1.      The correspondence exchanged between the Government of India and  Maharaja Hari Singh shows that articles in question were not claimed by  the ex-ruler to be his private property. 2.      Maharaha Hari Singh, in his lifetime, did not claim the articles in question  to be his personal properties. 3.      The appellant was recognized as the successor to Maharaja Hari Singh on  his demise in the year 1961.  No claim was made till representation dated  2nd December, 1983. 4.      Section 5(1)(ivx) of the Wealth Tax Act provides for exemption from

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wealth tax in respect of jewellery and other heirlooms in possession of the  ruler.  The exemption was available only where (a)     the ruler’s jewellery had been recognized by the Central Government  as his heirloom before the commencement of the Wealth Tax Act; or (b)     The Central Board of Direct Taxes recognized the ruler’s jewellery  as his heirloom at the time of his first assessment to wealth tax under  the Wealth Tax Act.                 The appellant did not make any application to the Central Board of  Direct Taxes to obtain such recognition nor Central Government had  recognized the said articles as heirlooms of the appellant, as required for the  purpose of exemption from wealth tax.  The appellant filed an application  claiming exemption under Section 5(1)(ivx) of the Wealth Tax Act in  respect of the articles in question only on 7th February, 1985, after filing of  the writ petition in the High Court. 5.      The appellant in his biography entitled "Heir Apparent" has made a  statement to the following effect : "Again unlike most of other Rulers, my father made a  clear distinction between his private property,  including jewellery and State property.  He left family  jewellery, shawls, carpets and Regalia worth crores  with the State Toshakhana (Treasury) which most  others in his place 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  subjective evidence by themselves, in view of Sections  17 and 21 of the Indian Evidence Act, though they are  not conclusive proof of the matters admitted."

       Further reliance was placed on Chikkam Koreswara Rao v. Chikkam  Subba Rao & Ors. [(1970) 1 SCC 558] for the observations to the following  effect: "Before the right of a party can be considered to have  been defeated on the basis of an alleged admission by  him, the implication of the statement made by him  must be clear and conclusive.   There should be no  doubt or ambiguity about the alleged admissions."

       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

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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 articles to 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 be faulted. Question No.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.  

       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, referred to  Sardar Patel’s aforesaid letter of June 9, 1949 and  reiterated that the properties mentioned in the Schedule  to Maharaja’s 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

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cannot arise.  Para 8 of Shri C.S. Venkatachar’s 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."         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. 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 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.         For the aforesaid reasons, we are of the view that no interference is called  for in the impugned judgment of the High Court.  The appeals are accordingly  dismissed, however, leaving the parties to bear their own costs.