Case: State of Jammu and Kashmir Vs. Sanaullah Mir

to the Chief Conservator of Forests; the office Note dated 9-6-1955 Ext. P.W. 1/3 and Chanas 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 w as 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 l and 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 States 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." 11. 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 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 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" 12. The Courts below have heavily relied up on 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 c ase 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 mi stake 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 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. 13.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]The Courts below have heavily relied up on 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 c ase 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 mi stake 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 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.