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TMI Blog1985 (4) TMI 320X X X X Extracts X X X X X X X X Extracts X X X X ..... nd Ajit Bhandari are not present in the court and for this reason the case has been handed over to Mr. Garg when a panel lawyer is in fact, within a short space of time Mr. Khan, prepared the case and assisted the court to the utmost satisfaction and raised number of technical pleas. I think it proper to express my appreciation for Mr. Khan and would like that in future at least he should see that proper assistance is given by his colleagues to the court and the cases of the State Government do not go in default for not putting the case properly. 2. This appeal has been directed against the judgment and decree passed dated 13th November, 1972, passed by the learned District Judge, Alwar, dismissing the suit of the plaintiff-appellant. The plaintiff-appellant has filed a suit against the State of Rajasthan for compensation for the use and occupation of the disputed property. It is an admitted position that the final inventory of the property of His Highness of Alwar was prepared. Ex. A/5 relates to the disputed property. Under the covenant the disputed property was considered as private property with some conditions. The relevant portion runs as under: Vinay Vilas Place with Gard ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of covenent Ex. 5. (3) At the time when the integration of the Alwar State was complete with the Union of India, a final list of inventory was prepared and the State Ministry informed about the same to His Highness, Alwar. A copy of such final list is A-5 on record. In such list, the disputed property has been given at S. No. 2 and the decision of the state Ministry about the same has been mentioned in the same list, which runs as under: Ancestral. The Vinay Vilas Palace Building will however remain in the possessions and use of the State so long as it is required by Government for educaiion purposes. During this period the Building will be maintained by the State and the Garden by the Ruler. The Building in which the Workkshop and the Office are housed at present and four garages will continue to remain in possession and use of the State so long as they are required for the purpose. 6. On behalf of the plaintiff PW 2 Madan Singh and PW 3 K.N. Bhargava have been produced. Madan Singh (PW 2) has stated that the value of the property is very high. It can fetch a rent of ₹ 6,000/- to ₹ 7,000/- per month and casts to ₹ 26 & 30 lacs. PW3 K.N. Bhargava was formerl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aforesaid case the property was City Palace including adjoining building, the details of which are as under: ---------------------------------------------------------------------------------------------------- Description nf property Decision of the States Ministry ----------------------------------------------------------------------------------------------------- City Palace including Ancestral. The portion of the build- adjoining building ing at present in use by the State for administrative purpose or for Museum and Imperial Bank will continue to be so used till such time as required. The requirements of the State in future will not be of the same order as today and every effort will be made to release the accommodation at present occupied in the Zanana and Mardana Mahals at the earliest practicable date. The State will bear the maintenance cost of the portion used by it. Any addition or alternation in the portion used by the State will require the prior consent of His Highness and should be carried out of the State Expense. 10. Mr. Khan, has submitted that this property has also been referred in Ex, A-5 Covenant which has been produced before ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he dispute is about the interpretation of the Covenant and, for this reason Article 363 of the Constitution of India does not apply in the facts and circumstances of the case. 12. I have given my thoughtful consideration to the rival contentions of the parties. Article 363 of the Constitution should be given a reasonable interpretation and should not be given as a handle in the hands of the State, where injustice may be inflicted on the plaintiff solely for the reason that the defendants have malafide adopted a defence which has no basis and according to Jaw would be rejected but rightly. On the other hand, if the preliminary investigation is in the nature of the dispute and is permitted according to law, there is no limit however the investigation is to go in order to determine whether in truth the defendant has a defence. I would not like to take the extreme view in the matter to the interpretation of Article 363 of the Constitution. I would prefer to adopt the view that the Court must be satisfied that the conflicting rights have to be decided between the parties and it is only where there is such a case then the Court should decline to decide 'he rights. 13. In the instan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the matter of interpreting the Covenant Ex. 5. Thus, the defendants have succeeded in making out a prima facie case of their defence. 14. Apart from that, the question arises why a specific reference has not been made in the Covenant about the compensation or the rent, when it was intended that the property shall be used by the State of Rajasthan for education purposes for an unlimited period and the plaintiff will have no right to ask for the vacation of the property. In such circumstances, it was also said that the intention may be that the property may be used gratutiously for an indefinite period as the name of the father of the ruler was linked with the College. This is also a ground for taking the view that there was a reasonable defence and the defendants have a right to invoke the provisions of Article 363 of the Constitution of India in the matter. 15. It will not be out of place to mention that Shri Tej Singhji exruler of Alwar is still alive, but he has not entered into the witness-box to show that was the intention at the time of entering into the Covenant and, for this reason also an adverse inference can be drawn against the plaintiff. 16. General power of attorn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ollege by the erstwhile State of Alwar & as such, it will fall within the purview of Article 295 of the Constitution of India But this question need not be decided as from a perusal of Section 10 itself it is clear that where a person lawfully does anything for another person. The word "Lawfully does anything" are having privity of contract between the parties The person who is delivering the property, or is doing something must do with the consent of the parties for whom it is done. But, in the instant case, such privity of contract or by implication or inference, consent of the former State of Rajasthan has not been established by the plaintiff in any way and the controversy whether any act has been done by the former Ruler of the erstwhile State of Alwar is again a disputed question of fact. Apart from that, the plaintiff has failed to prove what act has been done lawfully by the plaintiff for the State of Rajasthan. To do something and omit to do some thing and cannot be equated in interpreting the previsions of Section 70 of the Contract Act. In the instant case, at the most, it can be argued by the plaintiff, though it is not available on record, that the plaintiff ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng free of any obligation to pay rent. The word ''deliver" is wide enough and it may in some cases include symbolic delivery or physical delivery. 19. The word "delivery" in purusance of sale under Section 16 Bombay Weights and Measures Act, has been interpreted as not to mean only the actual and physical delivery but it also means a delivery in pursuance of a sale. Delivery is not the delivery of the carrier. There goods were sent by a seller from A Station to a purchaser at B Station by Railway parcel and the purchaser took delivery at Bon production of a railway receipt, the railway could not beheld to have made the delivery as they were merely carriers, but the meller at A must be held to have made the delivery to the purchaser at B through the carriers. Under Section 22 of the Arms Act 'delivery' means a conscious delivery though it need not be a physical delivery in that there must be proof that the accused delivered the arms with his own hands. If the property is delivered under an order of a Court then the purchaser to whom the possession is given free from any incumberance, in such a case it is an actual delivery. Section 2(2) of the Sales o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of the Calcutta High Court were considering the provisions of Section 70. They held that where goods are delivered pursuant to a request 70 does not apply. Plaintiff's goods in the said cases were delivered in pursuant to a request. In order to attract the provisions of Section 70 of the Act three conditions are to be established,(i) a person should lawfully do something for another person or deliver something to him; (ii) in doing so, he must not act gratuitously; and (iii) the person for whom it is done must enjoy the benefit thereof. In State of UP v. Mumtaz Hussain (6) it was held that the claim made by the plaintiff is for compensation for wrongful detention of timber which the plaintiff claims had been purchased by him. ft cannot be said that the plaintiff either did something for the State or that he delivered the timber to the State not intending to do so gratuitously. The timber was according to the plaintiff wrongfully seized and misappropriated by the officials of the State, ft may be that if the plaintiff had succeeded in making out a case that the timber of the Shisham trees belonging to him had been seized by the defendants he may have been able to recover compe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rpreting the covenant, we can take the aid of the previous conduct of the parties. Before entering into the agreement or covenant, no rent or compensation was paid to the ruler of the erstwhile State of Alwar & the educational institution was running since 1930. The merger took place in the year 1948 and the erstwhile ruler of the former State of Alwar has not claimed from the erstwhile State of Alwar any compensation for the property. This also reflects that there was no intention to do so and the act was done with the intention that it is done gratuitously. The covenant was entered into in the year 1949 and the property was transferred by a registered sale-deed by the erstwhile ruler of Alwar in favour of Her Highness the Maharani of Alwar on 10th October, 1960. Upto 10th October 1960, the ruler has not claimed any compensation or rent and there is nothing on the record to show that any compensation was claimed by the ruler of the erstwhile State of Alwar. This conduct also shows that the intention of the parties was that the act was gratuitous in character and the State was not liable to pay any rent or compensation. 23. Apart from taking into consideration the fact and circums ..... X X X X Extracts X X X X X X X X Extracts X X X X
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