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PETITIONER: STATE OF JAMMU & KASHMIR

       Vs.

RESPONDENT: SANAULLAH MIR

DATE OF JUDGMENT01/04/1980

BENCH: UNTWALIA, N.L. BENCH: UNTWALIA, N.L. GUPTA, A.C.

CITATION:  1980 AIR 1349            1980 SCR  (3) 281  1980 SCC  (3) 272

ACT:      Jammu and  Kashmir State  Land  Acquisition  Act,  1934 Section 4-Scope of.

HEADNOTE:      The respondent’s  forefather was  the landholder  of  a piece of land in the State. The land was taken possession of in 1897 as the land came under a Timber depot established on land adjacent  to Government  land. The  practice  prevalent during the  Maharaja’s time  was that only rent was remitted and no  compensation was  paid for the taking over the land. The respondent’s  ancestors had  no proprietory right in the land and  the right  of possession  was  also  lost  on  the Government dispossessing him.      Some  sixty   years  later,  the  respondent  filed  an application before  the then Prime Minister of the State for payment  of  compensation  of  the  said  land.  Instead  of deciding  as   to  whether  the  State  was  liable  to  pay compensation in  respect of  the land  which had  been taken over sixty  years ago,  a new  land  acquisition  proceeding under the Jammu and Kashmir State Land Acquisition Act, 1934 was started  in the year 1955 and an Award for Rs. 32,645.62 as compensation  for the  land was made by the Collector. On reference  the   District  Judge  increased  the  amount  of compensation.  On  appeal  by  the  State,  the  High  Court restored the amount fixed by the Collector. The respondent’s application under  order 41  Rule 27 C.P.C. was dismissed by the High  Court. A review petition that the land had already been acquired  and that  the land acquisition proceeding was without jurisdiction  and a nullity was rejected. A suit was filed that  the land  acquisition proceedings had been taken as a  result of  taken of  fact and  law and that the entire proceeding was vitiated. The suit was dismissed. Appeal to a division Bench was also dismissed.      Allowing the appeal, ^      HELD: In  1894 the  Assamidar lost his assamidari right when the State p resumed the land from him. There was no law then that compensation was to be given. It depended upon the sweet-will of the Riyasat to give some other land in lieu of the land  acquired. Only  the land revenue was remitted, and documents indicate,  compensation  was  also  paid  for  the

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standing crops  in the  land.  No  right  was  left  in  the landholder in  respect of  which he  could acquire  a better right. Whatever  right was  possessed  by  the  respondent’s ancestor was dead and gone in the year 1894. [285H, 286A-B]      2. The land was resumed by the Durbar from the ancestor of the  respondent before the end of the 19th century and it was recorded as ’Khalsa’. The land had become the State land in the  full sense  of the  term and  belonged to  the State since then. No semblance of any right, title or interest was left in the respondent’s ancestor thereafter. [286D-E]      3. A queer procedure was adopted for acquiring the land under  the   State  Land   Acquisition  Act   afresh,   thus determining the  compensation on  the basis  of  the  market value of  the land  prevailing 60  years  later.  Under  the influence of 282 some  high   ups,  a  case  was  made  out  for  payment  of compensation to  the  respondent  in  respect  of  the  land acquired sixty  years ago by acquiring it again which led to the determination  of the  market value  of the  land in the year 1955. [286G, 287A]      4. The  State Exchequer  cannot be  made to  suffer for illegal actions  of its  officers. The land had been resumed long ago  and belonged to the State. The whole proceeding of land acquisition  was a  nullity  and  the  Award  resulting therefrom was  ultra vires.  It mattered  little whether the proceeding was  taken as  a result  of fraud  or mistake  or otherwise. The  respondent had  not practised  any fraud nor was the  land acquisition  proceeding started as a result of any mistake  of fact.  It was  either as  a result  of gross negligence or  a deliberate act on the part of the officials at the  instance of  some high-ups  to help  the respondent. There is  no question  of any acquisition of the State’s own land as was purported to be done in this case. [287B-D]      Government of  Bombay v.  Esufali Salebhai, I.L.R XXXIV Bombay, 618; Mohammad Wajeeh Mirza v. Secretary of State for India in Council, A.I.R. 1921 oudh, 31, The Deputy Collector Calicut Division  v. Aiyavu  Pillay and  others,  IX  Indian Cases, 341;  The Collector of Bombay v. Nusserwanji Rattanji Mistri & others [1955] 1 S.C.R. 1311 referred to.      Secy. of  State v. Tayasaheb Yeshwantrao Holkar, A.I.R. 1932 Bom.  386, &  Narriot v. Hamoton [1797] 2 Sm. L.C., 386 distinguished.      5. The  plea taken  in the  appeal by filing a petition under order  41 Rule  27 or in the review matter in the High Court was  beyond the  scope of  the appeal  filed under the State Land Acquisition Act. The scope of that appeal was the determination of  the amount  of  compensation  and  not  to declare the  whole of  the  land  acquisition  proceeding  a nullity. Whatever,  therefore, was  said by  the High  Court either in  appeal on  the question  of adverse possession or while rejecting the review petition was outside the scope of the land  acquisition appeal.  It could  not operate  as res judicata in  the present  suit. The observations of the High Court were  without jurisdiction.  Nor did  any question  of estoppel arise  in this  case because the respondent was not made to change his position by starting the land acquisition proceeding against  him. He  had already  lost his  land. He merely wanted  compensation.  The  method  adopted  for  the payment of  compensation was  wholly ultra vires and without jurisdiction. [288H, 289A-B]

JUDGMENT:

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    CIVIL APPELLATE  JURISDICTION: Civil Appeal No. 1347 of 1970. From  the Judgment  and Decree  dated 29-4-1969 of the Jammu and Kashmir High Court in Civil Appeal No. 67 of 1965.      G.L. Sanghi,  V. K.  Boone  and  Shri  Narain  for  the Appellant.      Gopi Nath  Runzru, K. L. Taneja and S. L. Aneja for the Respondent.      The Judgment of the Court was delivered by      UNTWALIA, J.,-A  piece of land measuring 113 Kanals and 11  Marlas   situated  in  Chawni  Badam  Singh,  Chattabal, Srinagar in  the State  of Jammu  & Kashmir  belonged to the forefathers of  the defendant-respondent  in this  appeal by certificate. Indisputably the res- 283 pondent’s ancestor  was Assamidar  of the  land, that  is to say, he  was the  land holder  as  distinguished  from  land owner. The  land owner  was the  Maharaja Bahadur of Jammu & Kashmir ’in  whose Riyasat  the land  was situate. Proposals were made  in the  year 1893  to take  this  land  from  the ancestor of  the respondent  as it came under a timber depot established on  adjacent Government land. The land was taken possession of  and as  was the practice prevalent during the Maharaja’s time  only rent  was remitted and no compensation was paid for taking over the land. The respondent’s ancestor had merely a right of possession and no proprietory right in the land.  He lost  the  right  of  possession  too  on  the Government dispossessing  him and  taking possession for the purpose of  the  timber  depot.  Sixty  years  later  the  a Respondent  filed  an  application  before  the  then  Prime Minister of  Jammu &  Kashmir for payment of compensation of the land.  Inquiries were  made from the various officers of the various department and eventually instead of deciding as to whether  the State  was liable to pay any compensation in respect of  the land  which had been taken over 60 years ago or  not   the  decision  taken  was  to  start  a  new  land acquisition proceeding  under the Jammu & Kashmir State Land Acquisition Act,  1934 which  is at  pari materia  with  the Central Land Acquisition Act, 1894. Notice under s. 4 of the said Act  was issued  in or  about the  year  1955  and  the Collector,  Srinagar   made   an   Award   determining   the compensation for  the  land  at  Rs.  32,645.62  paise.  The respondent asked for a reference and on reference being made the learned  District Judge  determined the  compensation at Rs. 35,908.10 paise. The State preferred an appeal. The High Court restored the amount fixed by the Collector and knocked down the  enhancement made  by the  District Judge.  For the first time  in the High Court an application was filed under order 41  Rule 27  of the  Code of Civil procedures claiming adverse possession  of  the  land  and  for  the  taking  of additional  evidence.   The   High   Court   repelled   this contention. Later  a Review  Petition was  filed in the High Court claiming  that the  land had already been acquired and the  entire   land  acquisition   proceeding   was   without jurisdiction and  a nullity.  The High  Court was  asked  to award no  compensation. The  High Court rejected this Review Petition. Thereafter  the present suit was filed saying that the defendant  respondent had  committed fraud  and the land acquisition proceeding had been taken as a result of mistake of fact and law and that the entire proceeding was vitiated. The suit was filed on the original side of the High Court of Jammu &  Kashmir. The  learned Judge dismissed the suit. The State, the appellant in this appeal, failed in appeal before the Letters  Patent Bench  of the High Court. The matter has now come before us. 284

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    The findings of the learned single Judge are:-      "(1) That the  lands  in  dispute  were  in  continuous           possession of  the forest  department  since  1894           A.D.      (2)   That no  rent or  compensation was  paid  to  the           defendant or his ancestor for these lands.      (3)  That the lands in dispute were recorded as "Khalsa           Sarkar" which  means that the proprietory interest           vested in the Government.      (4)   That  at  the  time  when  the  land  acquisition           proceedings were initiated, the officers concerned           of the  plaintiff were  fully aware  of the  facts           mentioned  above.  But  their  attention  was  not           specifically drawn to the council resolutions.      (5)   That the  forest records having been burnt in the           year 1943  and after a fresh enquiry was initiated           at the  instance  of  the  Advocate  general,  the           council resolutions  were traced in the Government           repository at Jammu.      (6)   That the  old settlement file which contained the           resolutions perhaps  did not form part of the land           acquisition file." In regard  to finding no. 6 there was some controversy as to whether  the   land  acquisition   file  contained  the  old resolutions  or   not  and  whether  the  attention  of  the authorities was  drawn to them. We shall assume in favour of the respondent  as found  by the  learned Trial  Judge  that there was  no fraud  practised by  him  nor  was  there  any mistake of  fact on the part of the authorities concerned in starting the land acquisition proceeding.      The Appellate Bench of the High Court consisted of Mian Jalal-ud-Din J.  and Anant Singh J. They differed on most of the points  although agreed  in their  conclusion  that  the appeal should  be dismissed.  The findings of Mian Jalal-ud- Din J.  are .-(1)  "That it  could  not  be  said  that  the authorities dealing  with the  acquisition proceedings  were ignorant about  the factual  aspect of  the matter  that the land had  been  resumed  in  the  year  1893  under  council resolution and that no compensation was to be paid for this, and that  its character was that of "KHALSA" and it remained in  possession   of  the   forest  department  for  over  60 years...." (2) "In our opinion the initiation of acquisition proceedings was  wholly uncalled for as there was nothing to be acquired.  Land, which  was meant  to  be  acquired,  was already 285 resumed by  the Government  and in  possession of the Forest Department right from the year 1893 A.D. under the orders of the council and was shown as Khalsa ;" (3) "It appears to be a case  of gross  negligence on  the part of the officers of the Government  dealing with  the  acquisition  matter.  The plaintiff cannot  avoid the  decree on  the ground  that his officers have  acted in  gross negligence;" and (4) that the order of  the High Court in appeal and in review operated as res-judicata. The plaintiff-appellant was also estopped from challenging the  land acquisition proceeding. Mian Jalal-ud- Din J. agreed in this regard with the learned single Judge.      Anant Singh  J. did  not agree  with the  other learned Judge on  the question  of  estoppel  and  res-judicata  but agreed with  him that  negligence was  no ground for setting aside the  Award made in the land acquisition proceeding and concurred in the dismissal of the appeal.      Even on  the findings recorded by the courts below this appeal must  succeed. We  shall, however,  briefly refer  to some facts  which emerge  from the  council resolutions  and

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some other documents of the years 1893 and 1894.      Ext. P.W.  5/1 is State council Resolution No. 2 dt. 7- 6-1893 by  which sanction  was accorded  to the allotment of land with  existing house  situated  at  Purani  Chawni  for opening  a  Government  Timber  Depot.  Eventually  land  in question also  came under this depot. Ext. P.W. 5/2 is State Council Resolution  No. 17  dated 4-9-1893 showing that from the report  of the  Tehsildar it  appeared that  the  Forest Department wanted to take possession of the land in question which was  a sown  land by  storing  timber  there.  Council Resolution No.  10 dated  28-10-1893, Ext.  PW 5/3  is  very important. Now  this resolution  states that  the land shall have to be compulsorily acquired but "as per practice in the country only  the land revenue shall have to be remitted and the cultivators  cannot get any compensation in cash nor can the Council  sanction taking of the land on lease. Of course there is  no bar to the grant of cultivated land of the same quality to the cultivators in exchange by the Government."      Next comes  the Resolution  No. 8 dated 17-2-1894, Ext. PW 5/4   showing  "(a) The  Governor should  give  the  land required by  the Conservator of Forests and the land Revenue of the  land which has come under the timber depot should be remitted." Thereafter the order recorded is "The proposal of the  Settlement   Commissioner  is   accepted.  The  Revenue Department shall comply."      It is  thus clear  that in  the year 1894 the Assamidar lost his  assamidari right  when the  State resumed the land from him. There was no 286 law prevalent  then that compensation was to be compulsorily given. It  depended upon  the sweet-will  of the  Riyasat to give some  other land  in lieu of the land acquired. In this case also it appears only the land revenue was remitted. And probably, as  documents indicate, compensation was also paid for the  standing crops in the land. But what is clear to us with certainty  is that no right was left in the land holder in respect  of which  he could acquire a better right on the basis of  the report of the Glancy Commission in 1932 as has been remarked by the learned Trial Judge. Whatever right was possessed by  the respondent’s ancestor was dead and gone in the Year 1894.      Ext. P.  W. 14/2  is Intikhab  Jamabandi  Mauza  Chawni Badam Singh Tehsil. In the remarks column the note made runs thus:-      "By order  of Durbar  No. 2381  dated 5th Assuj ’55 the      total area  of village  has been excluded from the land      revenue, and  the total  land of  this village has come      under the timber depot and therefore the total land has      been recorded  as Khalsa.  The original  file has  been      returned  to  Durbar  on  29th  Assuj  after  necessary      action.      Dated 29th Assuj ’55." The  year  ’55  is  samvat  year  1955  which  will  roughly correspond to 1897. Thus there is no doubt that the land was resumed by  the Durbar  from the  ancestor of the respondent before the  end of  the 19th  century and it was recorded as ’Khalsa’. The  land had  become the  State land  in the full sense of  the term  and belonged to the State since then. No semblance of  any right  title or  interest was  left in the respondent’s ancestor thereafter.      Yet after  60 years  the matter  was re-agitated by the respondent by  claiming compensation  in respect of the land which had  been taken  possession of  long ago by the State. The respondent  did  not  claim  that  any  right  title  or interest was  left in him. He merely wanted on compassionate

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grounds compensation for the land. One can under stand if on compassionate grounds  some compensation  with reference  to the year  when the  land was  taken possession  of could  be determined and  paid. But  that was  not done.  A very queer procedure was  adopted of acquiring the land under the State Land   Acquisition   Act   afresh   thus   determining   the compensation on  the basis  of the  market value of the land prevailing 60  years later.  We have gone through the letter dated 17-12-1954  Ext. P.W.  14/A written  by Tehsildar; the Patwari’s  Report   dated  12-4-1955   Ext.   D.W.4/A;   the Tehsildar’s Report  dated 21-4-55  Ext. P.W.  19/B/2; letter dated  3-5-55   Ext.  D.W.12/1   written   by   the   Deputy Commissioner to the Commissioner; Ext. P.W. 287 1/2 the  letter dated 2-6-1955 written by the Conservator of Forests to the Chief Conservator of Forests; the office Note dated 9-6-1955  Ext. P.W. 1/3 and Chana’s letter dated 22-6- 1955, Ext.  P.W. 1/5.  On going  through these  documents it appears to  us that  under the  influence of some high-ups a case was  made  out  for  payment  of  compensation  to  the respondent in  respect of  the land acquired 60 years ago by acquiring it  again which naturally led to the determination of the  market value  of the land in or about the year 1955. The State Exchequer cannot be made to suffer for such wanton and illegal  actions of  its officers.  The  land  had  been resumed long  ago. It  belonged  to  the  State.  The  whole proceeding of  land acquisition  was a  nullity.  The  Award resulting therefrom  was also  ultra vires and a nullity. It mattered little whether the proceeding was taken as a result of the  fraud or  mistake or otherwise. We are accepting the findings of  the courts  below that  the respondent  had not practised and  fraud nor was the land acquisition proceeding started as a result of any mistake of fact. It was either as a result of gross negligence or a deliberate act on the part of the  officials at  the instance  of some high-ups to help the respondent. It is well-settled that there is no question of any  acquisition of the State’s own land as was purported to be done in this case.      In The  Government of Bombay v. Esufali Salebhai it has been observed at page 624 thus:-           "It is  quite true that there can be no such thing      as the  compulsory acquisition of land, owned by and in      the ’occupation  and control  of the  Crown.  The  Land      Acquisition Act cannot apply to such lands, because all      Crown lands  being vested  in the  Government, they are      competent and  free to  devote any  of those lands to a      public purpose.  It is  a contradiction in terms to say      that the  Government are  compulsorily  acquiring  that      which they  have already acquired otherwise, both as to      title and possession." The same  view has  been taken  in Mohammad  Wajeeh Mirza v. Secretary of  State for India in Council when at page 33 the passage from the judgment of Chandavarkar J. extracted above was  quoted  with  approval.  In  the  case  of  The  Deputy Collector, Calicut  Division v.  Aiyavu  Pillay  and  others Wallis  J.  Of  the  Madras  High  Court,  in  our  opinion, correctly observed-"It is, in my opinion, clear that the Act does not  contemplate or  provide for the acquisition of any interest which  already belongs  to Government in land which is being acquired 288 under the Act but only for the acquisition of such interests in the  land. as  do  not  already  belong  to  Government." Venkatarama  Ayyar   J.  speaking  for  this  Court  in  The Collector of  Bombay v. Nusserwanji Rattanji Mistri & others

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after quoting  the above  passage of  Wallis,  J.  from  the Madras decision  aforesaid remarked at page 1322-"With these observations, we  are in  entire agreement"  and added "When Government possesses  an  interest  in  land  which  is  the subject of  acquisition under  the  Act,  that  interest  is itself outside  such acquisition,  because there  can be  no question of Government acquiring what is its own"      The Courts  below have heavily relied upon the decision of the  Bombay High  Court in  Secy. of  State v.  Tayasaheb Yeshwantrao  Halkar.  This  decision,  in  our  opinion,  is clearly distinguishable.  Firstly the  principle in the case of Marriot  v. Hamoton  which was applied in the Bombay case is not  applicable in  the present  case. In the Bombay case the money under the land acquisition Award had been paid and the suit was for its recovery back. In that situation it was held that what was paid under the compulsion of law, namely, the land acquisition Award, cannot be recovered back. In the instant case  the money  has not  yet been paid. The suit is for the  cancellation of  the Award  which is a nullity. The second point  of distinction between the Bombay case and the present case is that in the former though the title belonged to the  Government, possession  was with  the other side. In the land  acquisition proceeding  possession was acquired on payment of  compensation. In  that event  it was  held  that money paid  was not under any mistake of fact or law. It was paid for  divesting the  defendant of his possession. In the instant case  neither title  nor  possession  was  with  the defendant. The  entire bundle  of rights  in  the  land  had vested in  the State  long ago and there was nothing left to be acquired. In such a situation the High Court was wrong in following the  Bombay decision  and in applying its ratio to the facts of this case.      We may  briefly dispose  of the  point of  estoppel and res-judicata. We  approve of  the view taken by Anant Singh, J. in  that regard.  We may  also add that the plea taken in the appeal  by filing  a petition under order 41, Rule 27 or in the  review matter in the High Court was beyond the scope of the  appeal filed  under the  State Land Acquisition Act. The scope of that appeal was the determination of the amount of compensation  and not  to declare  the whole  of the land acquisition 289 proceeding a  nullity. Whatever,  therefore, was said by the High Court  either in  appeal on  the  question  of  adverse possession  or  while  rejecting  the  review  petition  was outside the  scope of  the land acquisition appeal. It could not  operate  as  res-judicata  in  the  present  suit.  The observations of  the High  Court were  without jurisdiction. Nor did  arise any question of estoppel in this case because the respondent  was not  made  to  change  his  position  by starting the land acquisition proceeding against him. He had already lost  his land.  He merely  wanted compensation. The method adopted  for the  payment of  compensation was wholly ultra vires  and without  jurisdiction.  That  being  so  no question of estoppel arose in this case.      For the reasons stated above, we allow this appeal; set aside the  judgments and  decrees of  the High Court; decree the  plaintiff’s   suit;  declare   the   land   acquisition proceeding and  the Award  or the  decree made thereunder as nullities.   Since   the   defendant-respondent   has   been unnecessarily harassed  in the suit by the wrong and illegal actions of  the authorities of the State, we direct that the plaintiff-appellant will  get no  costs. On  the other hand, the defendant-respondent  will get costs of the suit and the appeals in  all the  three courts,  namely, the Trial Judge,

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the Division Bench and this Court. N.K.A.    Appeal allowed. 290