IMPORTANT POINT
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.

Headnote:Constitution of India-Article 363 -Claim of ex-ruler of 563 articles lying in Toshakhana (Treasury of State of Jammu & Kashmir)-Maintainability -Appellant is son of ex-ruler of Jammu and Kashmir-An instrument of accession of Jammu and Kashmir was executed by the Maharaja-Articles in question comprising of jewellery and gold articles transferred from Toshakhana at Jammu to Toshakhana at Srinagar-Maharaja, appellant s father died in 1961-During his life time, Maharaja did not claim the articles in question as private property-Appellant made a representation in 1983 claiming that articles lying in Toshakhana are property of ruler family, therefore, his personal property-Government rejecting appellant s claim-Writ petition-Whether writ petition was maintainable in view of bar contained in Article 363 of the Constitution-Whether appellant had right to reopen the issue after lapse of 30 years-(No)-Applicability of doctrine of estoppel, abandonment and waiver.
       Held : 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. (Para 19)
       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. (Paras 26 and 27)
       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. (Para 32)
       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. (Para 34)

JUDGMENT

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.

2. 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.

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 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 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 appellant s representative as also a representative of the S

Click Here to Read the rest of this document

2004 Supreme(SC) 476

IMPORTANT POINTThe 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.

Cases Referred (13)

IMPORTANT POINT
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.