Case: State of Jammu and Kashmir Vs. Sanaullah Mir

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 respondents ancestor was Assamidar of the land, that is to say, he was the land holder as distinguish ed 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 Maharajas time only rent was remitted and no compensation was paid for taking over the land. The respondents 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 be fore the Letters Patent Bench of the High Court. The matter has now come before usThe 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) "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 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.

Reasoning: 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.