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
GL Sanghi V K Boone and Shri Narain for the Appellant
Gopi Nath Runzru K L Taneja and section 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 section 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 3264562 paise
The respondent asked for a reference and on reference being made the learned District Judge determined the compensation at Rs 3590810 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 The findings of the learned single Judge are 1 That the lands in dispute were in continuous possession of the forest department since 1894 AD 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 AD 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 some other documents of the years 1893 and 1894
PW 51 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
PW 52 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 53 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 54 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
P W 142 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 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
PW 14A written by Tehsildar the Patwari s Report dated 12 4 1955 Ext
DW4A the Tehsildar s Report dated 21 4 55 Ext
PW 19B2 letter dated 3 5 55 Ext
DW121 written by the Deputy Commissioner to the Commissioner Ext
PW 287 12 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
PW 13 and Chana s letter dated 22 6 1955 Ext
PW 15
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 vs 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 vs 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 vs 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 vs Nusserwanji Rattanji Mistri  others 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 vs Tayasaheb Yeshwantrao Halkar
This decision in our opinion is clearly distinguishable
Firstly the principle in the case of Marriot vs 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 the Division Bench and this Court
NKA Appeal allowed


Summary:
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 3264562 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 CPC 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 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 vs Esufali Salebhai ILR XXXIV Bombay 618 Mohammad Wajeeh Mirza vs Secretary of State for India in Council AIR 1921 oudh 31 The Deputy Collector Calicut Division vs Aiyavu Pillay and others IX Indian Cases 341 The Collector of Bombay vs Nusserwanji Rattanji Mistri  others  referred to
of State vs Tayasaheb Yeshwantrao Holkar AIR   Narriot vs Hamoton distinguished
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