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Kirti Kumari Baji Saffiba of Rewa Vs. Union of India and anr. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtDelhi High Court
Decided On
Case NumberCivil Writ Appeal No. 79D of 1963
Judge
Reported inILR1971Delhi677
ActsCode of Civil Procedure (CPC), 1908 - Sections 86
AppellantKirti Kumari Baji Saffiba of Rewa
RespondentUnion of India and anr.
Advocates: M.B. Lal,; T.L. Garg,; D. Chaudhary,;
Cases ReferredMaharaj Kumar Tokendra Bir Singh v. Secretary
Excerpt:
civil procedure code - sections 86 and 87b--considerations--relevant in granting permission for filing a suit against a ruler stated.; the question whether government should have granted permission to the petitioner to file a suit against a ruler has to be decided primarily on the representation made by the petitioner to the government asking for such permission and whether the refusal of the government to accord the permission was unreasonable in the light of the representation made by the petitioner. the merits of the claim of the petitioner existing out-side the representation and not brought to the notice of the government cannot be taken into account in judging the reasonableness of the refusal to grant permission even if the merits are now brought to the notice of the court. - .....the petitioner and for sanctioning the initiation of criminal prosecution or the institution of a civil suit against the respondent no. 2 for vindicating her rights in respect of her various properties and her maintenance right. she refers to 'vide annexure' but leaves the description or the number of the annexures blank and in fact she has not filed a single document showing what representations she had made to the union of india. she says, however, that the respondent no. 1 arbitrarily refused to grant the same vide annexure f which is a copy of the letter dated 24-5-1961 by shri k. n. v. nambisan, deputy secretary ministry of home affairs refusing permission to the petitioner for filing a civil suit against the respondent no. 2. the permission to file a civil suit against respondent.....
Judgment:

V.S. Deshpande, J.

(1) The petitioner is the step grandmother of Respondent No. 2 the present Maharaja of Rewa. She avers in paragraph 12 of the petition that she made several representations to the Respondent No. 1, the Union of India for protecting and safeguarding the property and maintenance rights of the petitioner and for sanctioning the initiation of criminal prosecution or the institution of a civil suit against the Respondent No. 2 for vindicating her rights in respect of her various properties and her maintenance right. She refers to 'vide Annexure' but leaves the description or the number of the Annexures blank and in fact she has not filed a single document showing what representations she had made to the Union of India. She says, however, that the Respondent No. 1 arbitrarily refused to grant the same vide Annexure F which is a copy of the letter dated 24-5-1961 by Shri K. N. V. Nambisan, Deputy Secretary Ministry of Home Affairs refusing permission to the petitioner for filing a civil suit against the Respondent No. 2. The permission to file a civil suit against Respondent No. 2 was necessary in view of sections 86 and 87B of the Code of Civil Procedure. The petitioner says that the provisions of sections 86 and 87B are ultra virus the Constitution and prays for a declaration to that effect. Alternatively, if these provisions are held to be constitutional, then the petitioner prays that a writ of mandamus or any other appropriate writ or direction should be issued by this Court to the Union of India to accord sanction for the institution of a suit by the petitioner against the Respondent No. 2. Both the Union of India and the Maharaja of Rewa have contested the claim of the petitioner. The Maharaja has stated as to the merits of the claim of the petitioner that she does not have any claim against him on merits and the Government has also denied the claim of the petitioner on merits. The Government has affirmed that sections 86 and 87B Civil Procedure Code are valid and that the petitioner is not entitled to any relief against the Union of India.

(2) We are not concerned in this case as to the merits of the ultimate claim of the petitioner against the Maharaja of Rewa, Respondent No. 2, which she may conceivably make in a suit against him if and when such a permission is obtained from the Government or in case the necessity for permission ceases on the deletion of section 87B from the Code of Civil Procedure. The Constitution (Twenty-sixth Amendment) Bill, 1971 has been introduced in Parliament by the Prime Minister for this specific purpose already. We are concerned only with the question whether the two reliefs claimed by the petitioner can be granted to her. The questions for, decision, thereforee, are as follows :

(1)Whether the provisions of sections 86 and 87B are unconstitutional and (2) Whether the Government should be directed to give permission to the petitioner to file a civil suit against the Respondent No. 2 ?

Question NO. 1 : The validity of sections 86 and 87B of the Code of Civil Procedure is no longer open to question inasmuch as the necessity of obtaining permission by a plaintiff from the Government before filing a suit against a Ruler of an Indian State required by section 87-B read with section 86 has already been upheld by the Supreme Court in Narottam Kishore Deb Varman v. Union of India. : [1964]7SCR55 . This relief cannot, thereforee, be granted to the petitioner. Question NO. 2: In the subsequent decision of Maharaj Kumar Tokendra Bir Singh v. Secretary to the Government of India : AIR1964SC1663 , Gajendragadkar C. J. laid down two considerations which should guide the Government in granting or refusing permission for the filing of a suit against a Ruler of an Indian State. Firstly, the Government should not try to adjudicate the merits of the claim but should confine its attention to the question whether prima facie the claim is frivolous. Secondly, the purpose of section 87B is similar to that of section 80 Civil Procedure Code, namely, to give the Government an opportunity to consider the claim and to settle it amicably if possible. The question, thereforee, whether the Government should be directed to grant permission to the petitioner to file a suit against the Respondent No. 2 has to be primarily decided on the representation made by the petitioner to the Government asking for such permission and whether the refusal of the Government to accord the permission was unreasonable in the light of the representation made by the petitioner. Unfortunately, the petitioner has not placed on record either any document or contents of any documents requesting the Government to grant the permission for filing a suit against Respondent No. 2. But the copy of the letter of Shri Nambisan filed by the petitioner refusing the permission begins by referring to two letters written by the petitioner to the Government to which Shri Nambisan's letter was a reply. These two letters are dated 19-11-1960 and 7-4-1961. I, thereforee, asked the Respondent No. I to produce these letters in original. Letter of 19-11-1960 is in English while the letter of 7-4-1961 is in Hindi. Both of them have been produced in original as they exist in the file of the Ministry of Home Affairs.

(3) On perusing these two letters, it appears that the petitioner made two claims against the Maharaja, namely, (1) in respect of jewellery and (2) in respect of her right to reside in the Rewa Kothi at Allahabad. The petitioner did not specify of what items the jewellery consisted except one, namely, a pearl necklace. The Government could not, thereforee, attach any importance to a vague claim for jewellery as such but could consider only the claim of specific item, namely, the pearl necklace. It was pledged with the Maharaja of Rewa for Rs. 5,000. The petitioner, however, did not aver that she ever offered to repay to the Maharaja the loan against which the necklace had been pledged. She also did not aver that the Maharaja had refused to return the pledge to her after she had made a valid tender for the repayment of the loan. Unless this was stated, no cause of action was shown by the petitioner to have arisen in her favor for the return of the pledge. The untenability of her claim before the Government was later borne out by subsequent events. The Respondent No. 2 has filed copies of documents at Annexure to the counter-affidavit filed by him which completely negative the claim to the pearl necklace. On 9-1-1962, the Maharaja called upon the petitioner to pay the amount of loan taken by her from him early as she had not done so far about eight years. The Maharaja says that it was not possible to wait any longer and if the petitioner did not pay off the debt the Maharaja would take steps to sell the pledged article. The reply of the petitioner to this notice on 17/18th January 1962 through her lawyer was that the Maharaja should return the necklace to her and that she was willing to pay the sum of Rs. 5,000 to him. Between the debtor and the creditor it is for the debtor to first make a valid tender of the payment of the debt and it is then for the creditor to return the article pledged. As the petitioner did not make a valid tender of the payment of the loan the Respondent No. 2 was not bound to return the pledged article to her.

(4) As for the right of residence in the Rewa Kothi at Allahabad, the said house was included in the list of the personal properties of the Ruler prepared at the time of the accession as shown at Item No. 6 in the Inventory of the private properties of the Maharaja of Rewa attached to the letter dated 6-1-1963 from Shri C. S. Venkatachar. Secretary to the Government of India. This meant that the house was not State property. It did not mean that the petitioner may not have some claim against it or some other property of the Maharaja for her residence. But the admitted fact which was within the knowledge of the Government is that the petitioner has been getting Rs. 2,500 per month from the Government after the death of Maharaja in the same way as the Maharaja was getting his privy purse. The Government, thereforee, could not be impressed at all with the claim for the residence made by the petitioner. For, if the Government is paying the sum of Rs. 2,500 to the petitioner the allowance must be intended to cover the expenses of the petitioner's living including residence.

(5) Apparently, thereforee, the Government was not at all impressed with the representation made by the petitioner. In other words, the claim of the petitioner as presented to the Government in the abovementioned two letters could be said to be frivolous within the meaning of the guideline laid down by the Supreme Court in Maharaj Kumar Tokendra Bir Singh's (2) case, referred to above. Under the above circumstances, it could not be said that the refusal of the permission by the Government to the petitioner was so unreasonable that the Court should set it aside.

(6) For the above reasons, the writ petition is dismissed without any order as to costs.


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