JUDGMENT

ORDER :— Leave granted.

2. Heard Counsel for the parties as also for CBDT and Wealth Tax Officer.

3. The short question raised in this appeal is whether inspection of the jewellery and other valuable articles of personal use contained in six boxes lying in Srinagar Toshakhana - which boxes are at present kept under lock and seal of the Commissioner appointed by the J & K High Court under its order dated June 22, 1984 - was improperly declined by the learned single Judge by his order dated July 20, 1985 pending disposal of the main Writ Petition No. 122 of 1984. The learned Judge has rejected the appellants prayer for inspection by observing thus :

"Be that as it may, at this stage without, speculating on the merits of the petition, I find that no useful purpose will be served by granting relief to the petitioner which he has prayed in the present CMP."

4. According to the appellant there were two matters before the Government of India (i) whether the appellant was the owner of the jewellery or other valuable articles of personal use lying in those boxes on the ground that the properties are heirlooms and (ii) whether exemption in respect of such items of properties as heirlooms under S. 5(1)(xiv) of the Wealth Tax Act in Wealth Tax Assessment proceedings of the appellant as HUF was available to him or not and for both these matters it was necessary to have an inspection of the items by experts to establish whether the properties are heirlooms or not. In fact the prayer for inspection was made by him on the basis of two letters one dated 12th of February 1985 and the other dated 13th of June, 1985 issued from the Ministry of Finance, Central Board of Direct Taxes, particularly the former wherein, in the context of the appellants application for exemption under S. 5(1)(xiv), it was suggested by the CBDT that the appellant should arrange for the physical inspection of the items in question by the Member (WT & J) who would be accompanied by some experts such as Director General, Archaeological Survey of India; Director Antiques, Director National Museum and Approved Valuers of jewellery and others for that purpose. Even then the prayer for such inspection was rejected.

5. The relevance and necessity of such inspection in the context of the two matters that are pending before the Government of India cannot be disputed, for, the main issue arising between the parties is whether the jewellery and other valuable articles of personal use contained in the six boxes lying in Srinagar Toshakhana are heirlooms of the appellant and his family as claimed by him or not and such inspection by experts will unquestionably facilitate its determination. We, therefore, fail to appreciate how the learned Judge felt that no useful purpose will be served by the inspection sought by the appellant.

6. Counsel for the Union of India as well as the learned Advocate General of J & K appearing for the State strenuously urged before us that the appellants claim of ownership or title to these items has been refuted in the counter-affidavits that have been filed in the main writ petition where the property has been claimed to be State property and in this behalf reference was also made to one of the preliminary objections raised by the Union of India to the maintainability of the writ petition on the ground that at the time of the settlement arrived at between the acceding Ruler Maharaja Hari Singh and Government of India no such claim was made and that under Art. 368(1) of the Constitution neither Covenant/Merger agreement nor any dispute or obligation arising therefrom is justiciable and therefore the writ petition deserves to be dismissed. It was, therefore, urged that unless the appellant shows some prima facie title to the property in question inspection would be premature and, uncalled for. Questions of maintainability of the writ petition and appellants title to the property in question would undoubtedly be gone into at the final hearing of the writ