Holding

The land acquisition proceeding was ultra vires because the land had already vested in the State, rendering the award a nullity.

Summary

The respondent’s ancestor was an Assamidar who held a parcel of land in Srinagar until the Maharaja’s Durbar resumed it in 1894, recording it as "Khalsa" state land and paying only rent, with no compensation. Sixty years later the respondent sought compensation, prompting the State to initiate a fresh land‑acquisition proceeding under the Jammu & Kashmir State Land Acquisition Act, 1934, which resulted in an award based on the 1955 market value. The High Court upheld the award and dismissed the respondent’s petitions under Order 41 Rule 27 CPC and a review petition, while the respondent’s suit challenging the acquisition as a nullity was also dismissed. The Supreme Court held that the land had already vested in the State in 1894, so the acquisition proceeding was ultra‑vires and the award a nullity; the High Court’s orders were beyond its jurisdiction and could not operate as res judicata. Consequently, the appeal was allowed, the High Court judgments set aside, and costs awarded to the respondent.

Issues considered

Whether land that was resumed and recorded as Khalsa state land in 1894 can be subject to a fresh acquisition proceeding under the Jammu & Kashmir State Land Acquisition Act, 1934.
Whether the State is liable to pay compensation for land taken in 1894 when no compensation was provided at that time.
Whether the acquisition proceeding and the award are ultra vires and a nullity.
Whether the High Court’s orders in the appeal and review proceedings constitute res judicata or estoppel against the respondent.

Legislation cited

Code of Civil Procedure, 1908s. Order 41 Rule 27
Jammu and Kashmir State Land Acquisition Act, 1934s. Section 4

Subjects

land acquisitionstate landKhalsacompensationnullityultra viresres judicataestoppelAssamidarJammu & Kashmir

Judgment

281

STATE OF JAMMU & KASHMIR
v.
SANAULLAH MIR
April I, 1980
(A. C. GUPTA AND N. L. UNTWAL!A, H:]
·B
· Jammu und Kashmir State Land Acquisition Act, 1934 Section 4-Scope of,
The respondent's forefather \vas the landholder of a piece of land in the
State. 1be land was taken possession of in 1897 as the land came urrder a
Timber dopot 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 aiices· C
tors had no proprietory right in the land and the right of possession was also
IQ!\! oo the Government dispossessing him.
Some sixty years later, the respondent filed an application before the then
Prime Minilter of the State for payment of compensation of the said land.
Instead of deciding as to whether the State ~'as liable to pay compens.ation in
respect of the land which had been taken over sixty years ago, a new land
acquWtion proceeding under the Jammu and Kashmir State Land Acquisition D
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 Dis-
trict Judge increas'ed 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 E
suit was filed that the Jand acquisition proceedings had been taken as a result
of mistake of fact and law and that the entire proceeding was vitiated. The
suit was dis.missed. 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
· , __ Jo be given. It depended upon the sweet-will of the Riyasat to give some
"../ other )ancl in lieu of the land acquired. Only the land revenue was remitted,
and docnments indicate, compensation was also paid for the 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 ances·
tor was dead and gone in the year 1894. [285H, 286A-B] G
2. The land was resumed by the Durbar from the ancestor of the respon-
dent before the end of the 19th century and it was recorded as 'Khalsa'. The
Ian<! bad 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 que<r procedure was adopted for acquiring the land under the State R
Lad Acqoisition Act afresh, thus determining the compensation on the basis of
the market value of the land prevailing 60 years later. Under the in!luence ol
19-IS9~C 1 180
282 SUPREME COURT REPORTS
1

[1980] 3 S.C.R.

A some high ups, a case was made out for' payment of compensation to tlte res·
pondent 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, 287AJ
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
8 therefrom was ultra vires. It mattered ~ttle whether the proceeding waa 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 instanCIO of some high-ups to help the respon-
dent There is no question of any acquisition of the State's own land as was
purported to be done in this case. [287B-DJ
0
Government Off Bombay v. Esufali Salebhai, I.L.R. XXXIV Bombay, 618;
1vlohammad Wajeeh Mirza v. Secretar:y of Statt for India in Council, A.LR.
1921 Oudh, 31, The Deputy Collector ,Calicut Division v. Aiyavu Pil/ay amf
others, IX Inciian Cases, 341; The Collector of Bombay v. Nusserwanji Rattanji
Mistri & Others [1955] I S.C.R. 1311 referred to.
Secy. of State v. ·Tayasaheb Yeshwantrao Holkar, A.LR. 1932 Born. 386, &
D 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 compe'nsation and not to ,declare the whole of
the land acquisition proceeding a nullity. Whatever, therefore, was said by the
g High Court either in appeal on the question of adverse possession or while re- ')-
jecting the review petition was outside, the scope of the land acquisition appeal.
It could not operate as resjudicata in the present suit. The observations of the
High Court were without jurisdiction. Nor did any question of estoppel arise
in this ca~e because the· respondent waS not made to change his position by start-
ing the land acquisition proceeding against him. He had already lost his
land. He merely wanted compensation. The method adopted for the
F payment of compensation was wholly ultra vires and without jurisdiction.
[288H, 289A-B]
CIVIL APPBLLATB 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 G. L. Sanghi, V. K. Boone and Shri Narain for the Appellant.
Gopi Nath Kunzru, K. L. Taneja and S. L. Aneja for the Res- "°
: pondent. -.._
The Judgment of the Court was delivered by •
UNTWALJA, J.,-A piece of land measuring 113 Kanals and 11

H Marlas situated in Chawni Badam Singh, Chattabal, Srinagar in the
State of Jammu & Kashmir bejonged to the forefathers of the defen-
dant-respondent in this appeal, by certificate. Indisputably the reg-
J. & K. v. SANAULLAH MIR (Untwalia, !.) 283

pondent's ancestor was Assamidar of the land, that. s to say, he was A
the land holder as distinguished from land owner. The land owner
was the Maharaja Bahadur of Jammu & Kashmir fin 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 B
time only rent was remitted and no compensation was paid for taking
over the land. The respondent's ancestor had merely a right of pos-
session 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 deoot. Sixty years later the
respondent filed an application before the then Prime Minister of
c
Jammu & Kashmir for payment of compensation of the land. In-
quiries 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 D
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 E
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 4 I 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 pro-
ceeding was without jurisdiction and a nullity. The High Court was
asked to award no compensation. The High Court rejected this Re-
view Petition. Thereafter the present suit was filed saying that the G
• 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,
H
failed in appeal before the 1 etters Patent Bench of the High Court.
The matter has now come before us.
284 SUPREME COUR~ REPORTS (191!0] 3 S.C.R.

A The findings of the learned single Judge are :-
"(1) That the lands in dispute were in continuous pos-
session of the forest department since 1894 A.D.
(2) That no rent or compensation was paid to the defen-
dant or his ancestor for these lands.
B (3) That the lands in dispute were recorded as "Khalsa
Sarkar" which means that the proprietory inte1est
vested in the Government.
(4) That at the time when the land acquisition proceed-
ings were initiated, the o)Iicers concerned of the plain-
c tiff were fully aware of the facts mentioned above.
But their attention was not specifically drawn to the
council resolutions.
(5) That the forest records paving been burnt in the year
1943 and after a fresh. enquiry was initiated at the
instance of the Advocate general, the council resolu-
D tions were traced in the Government repository at
Jammu.
(6) That the old settlement, file which contained the reso-
lutions perhaps did not form part of the land acqui-
sition file."
E
In regard to finding no. 6 there was some controversy as to whether
the land acquisition file contained the old resolutions or not and whe-
ther 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 jlractised by him nor was there any
F mistake of fact on the part of th<; 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 dismis-
G sed. The findings of Miao Jalal-ud-Din J. are :-(1) "That it could
not be said that the authorities dealing with the acquisition proceed-
ings 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 rejllained in possession of the forest de-
H partment 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
J. & K. v. SANAULLAH MIR (Untwalia, J.) 285

resumed by the Government and in possession of the Forest Depart- A
ment right from the year 1893 A.O. under the orders of the council
,. and was shown as Khalsa;" (3) "It appears to be a case of gross negli-
gence 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· B
judicata. The plaintiff-aippellant was also estopped from challenging
the land acquisition proceeding. Mian Jalal-ud-Din J. agreed in this
regard with the learned single Judge.
Arrant Singh J. did not agree with the other learned Judge on the
question of estoppel and res-judicata but agreed with him that negli· C
gence 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 some other documents of the D
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 al so came under this depot.
Ext. P.W. 5/2 is State Council Resolution No. 17 dated 4-9-1893 show- E
ing that from the report of the Tehsildar it appeared that the Forest
Department wanted to take posse~sion of the land in question
which was a sown land by storing timber there. Council Resolution
·No. JO dated 28-10-1893, Ext. PW 5/3 is very important. Now this
resolution states that the land shall have to be compulsorily acqnired p
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 17-2-18~4, Ext. PW 5/4 G'
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 ofthe Settlement Commissioner is
accepted. The Revenue Department shall comply."
R
It is thus clear that in the year 1894 the Assamidar lost his assami-
dari right when the State resumed the land from him. There was no
•
286 SUPREME COURT REPORTS [1980] 3 S.C.R.

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 de.ad and gone in the year 1894.
Ext. P. W. 14/2 is Intikhab Jamabandi Mauza Chawni Badam
c Singh Tehiil. 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 re-
venue, and the total land of this village !las come under
the timber depot and therefore the total land has been
recorded as Khalsa. The original file has been returned
D
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 Dur-
bar from the ancestor of the respondent before the end of the 19th
E
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
F 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 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
B Patwari's Report dated 12-4-1955 Ext. D.W.4/A; the Tehsildar's Rep-
ort 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.
J. & K. v. SANAULLAH MIR (Untwalia, !.) 287

1/2 the letter dated 2·6-1955 written by the Conservator of Forests to A.
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 acquir-
ing it again which naturally led to the determination of the market B
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 mat-
tered little whether the proceeding was taken as a result of the fraud c
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 res-
pondent. It is well-settled that there is no question of any acquisition
D
of the State's own land as was purported to be done in this case.

In The Government of Bombay v. Esufali Sa/ebhai(l) it has been
observed at page 624 thus :-
"It is quite true that there can be no such thing as the B
compulsory acquisition ofland, owned by and in the ;occu-
pation and control of the Crown. The Land Acqui-
sition 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 F
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. Secre-
tary of State for India in Counci/(2) when at page 33 the passage from
the jud,gment of Chandavarkar J. extracted above was quoted with G
approval. In the case of The Deputy Co!/ector, Ca!icut ,Division v.
• Aiyavu Pi/lay and others(l) Wallis J. of the Madras High Court, in our
opinion, correctly observed-"lt 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
(I) I, L. R. XXXIV Bombay, 618. H
(2) A.LR. 1921 Oudh, 31
(3) IX Indian Cases, 341.
288 SUPREME COURT REPORTS [1980] 3 S.C.R.

A 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(l) 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 acqui-
sition under the Act, that interest is itself outside such acquisition,
because there can be no question of Government acquiring what is
its o\vn."

The Courts below have heavily relied upon the decision of the
c Bombay High Court in Secy. ofpState v. Tayasaheb Yeshwantrao
Ha/kar.(2) This decision, in our opinion, is clearly distinguishable.
Firstly the principle in the case of Marriot v. Hamoton(l) which was
applied in the Bombay case is not applicable in the present case. Tn
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
D
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
E though the title belonged to the Government, possession was with the
other side. In the land acquisition proceeding possession was acquir-
ed 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 divest-
ing the defendant of his possession. In the instant case neither title
nor possession was with the defendant. The entire bundle of right~
in the land had vested in the State loug ago and there was nothing left
' to be acquired. In such a situation the High Court was wrong iR
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 regltrd. We ...
G
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
8 (I) [1955] I S.C.R. 1311.
(2) A. I. R. 1932, Bombay, 386.
(3) (I 797) 2 Sm.L.C. 386.
J. & K. v. SAN AULLAH MIR (Untwalia, I.) 289

proceeding a nullity. Whatever, therefore, was said by the High Court A
either in appeal on the question of adverse possession or while reject•
ing 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 pro- B
ceeding against him. He had already lost his land. He merely wanted
compensation. The method adopted for the payment of compen•
sation 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 C
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-responde;it 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 D
get costs of the suit and the appeals in all the three courts, namely, the
Trial Judge, the Division Bench and this Court.

N.K.A. Appeal allowed.