judgement:
Civil Appeal No. 290 of 1979.
Appeal by Special Leave from the Judgment and Order dated 25th January 1979 of the Delhi High Court in S.A.O. No. 73/78.
Hardev Singh and R. section Sodhi for the Appellant.
Y. section Chitaley and K. C. Dua for the Respondent.
The Judgment of the Court was delivered by KRISHNA IYER, J.
This appeal is symptomatic of a social pathology which afflicts the Justice System at every level with none concerned to cure it.
The extraordinary scarcity of accommodation in our country has produced the legislative and legislative phenomena of tenants ' protection laws and interminable 'eviction ' cases.
The situation cries for a social audit of the explosive expansion of ruinous and pathetic 283 'rent control litigation ' and an urgent yet dynamic policy of promoting house construction for the lower brackets of Indian humanity.
A landlady let out her premises to another day several years ago (1968) for a term and, thereafter, from time to time, continued the possession of the tenant on fresh lease and increase in rent.
Every time there was homage to the law by grant of sanction by the Rent Controller under Section 21 of the Delhi Rent Control Act, 1958.
(the Act, for short), as if the letting were of a residential accommodation.
It is apparent that all these years an elitist 'residential school ' is being run in the premises and that is the purpose expressly recited in all but the last lease deed of December 1975.
This lease recites blandly that 'the lessee requires a suitable accommodation for residential purposes '.
The period of the lease having expired the landlady applied for summary eviction by application for execution a novel procedure enjoyed by the landlords of this capital city which relieves them of the need even to file a suit for eviction.
The tenant, whose expensive and lucrative school was about to be uprooted for want of habitation, hunted for a legal plea to resist the threat of dispossession.
Technicality is the unfailing resource of an Indian litigant and the ingenious defence, among others, was set up that because the application for eviction did not mention that the letting was 'in writing ' it was fatally flawsome.
Better pleas which merited serious consideration were over ruled but this little infirmity in the pleading loomed large in the eyes of the Rent Controller who, for that reason alone, rejected the relief.
The inevitable appeal to the Tribunal followed.
An application for amendment of the pleading, by way of abundant caution, to make good the verbal deficiency was also made.
Furious forensic battles raged and the appellate tribunal as well as the High Court allowed the appeals and the amendments, over ruling the further plea of limitation for the application as on the date of the amendment.
The worsted tenant has secured leave to appeal and there is an application for revocation of leave.
We have been addressed two main arguments plus other points of lesser moment.
The first is that the application for execution is defective because in the narration of facts the lease is mentioned but the words 'in writing ' are not stated.
It is further contended that by the time these words were supplied by amendment of the application, the period of limitation (six months) had elapsed and that bar prevented entertainment of the proceedings.
284 Pleadings are not statutes and legalism is not verbalism.
Common sense should not be kept in cold storage when pleadings are construed.
It is too plain for words that the petition for eviction referred to the lease between the parties which undoubtedly was in writing.
The application, read as a whole, did imply that and we are clear that law should not be stultified by courts by sanctifying little omissions as fatal flaws.
The application for vacant possession suffered from no verbal lacunae and there was no need to amend at all.
Parties win or lose on substantial questions, not 'technical tortures ' and courts cannot be 'abettors '.
The further arguments on limitation when a vital fact creative of a cause of action is brought in by amendment after expiry of limitation is an important question which need not be considered in the view we have taken on the adequacy of the pleading.
The next issue is of importance not merely for this lis but also for the sensitive application of Sec. 21 in its social perspective.
The notorious rack renting and impotence of legislation against unreasonable eviction in the capital city of Delhi (and elsewhere) compels us to take a close look at the facile provision in Sec. 21, its social purpose and functional distortion, its potential for subversion of the statutory scheme unless, by interpretation, it is canalised and the 'mischief rule ' in Hyden 's case applied.
After all, for the common man, law in action is what the court says it is.
To maintain the integrity of the law the court must 'suit the action to the word, the world to the action, and so we have to fathom, from the language employed and the economic, milieu, what the meaning of Sec.
21 is and save it from possible exploitation by unscrupulous landlords for whom 'fair is foul, and foul is fair '.
Rent control legislation in Delhi, as elsewhere in the country, is broadly intended 'to provide for the control of rents and evictions and of rates of hotels and lodging houses and for the lease of vacant premises to Government, in certain areas in the Union Territory of Delhi.
This is understandable where the city population swells and the city accommodation stagnates, the people suffocate for space and landlords 'make hay ' playing the game of 'each according to his ability to grab '.
Parliament has built into the Act restriction on eviction.
14 (1) starts off: "Notwithstanding anything to the contrary in any other law or contract, no order or decree for the recovery of posses 285 sion of any premises shall be made by any court or Controller in favour of the landlord against a tenant: Provided that the Controller may, on an application made to him in the prescribed manner, make an order for the recovery of possession of the premises on one or more of the following grounds only, namely: . . . . . . . .
The scheme of embargo on eviction makes a pragmatic swerve by the time we reach Sec.
We can correctly visualise the scope and sweep of this provision only in its proper social setting.
It carves out a category for special treatment.
While no landlord can evict without compliance with Sections 14, 19 and 20; does a liberal eviction policy underlie Sec.
21 ? Apparently contrary but actually not once we understand the raison d 'etre of the section.
Parliament was presumably keen on maximising accommodation available for letting, realising the scarcity crises.
One source of such spare accommodation which is usually shy is potentially vacant building or part thereof which the landlord is able to let out for a strictly limited period provided he has some credible assurance that when he needs he will get it back.
If an officer is going on other assignment for a particular period, or the owner has official quarters so that he can let out if he is confident that on his retirement he will be able to re occupy, such accommodation may add to the total lease worthy houses.
The problem is felt most for residential uses.
But no one will part with possession because the lessee will become a statutory tenant and, even if bona fide requirement is made out, the litigative tiers are so many and the law 's delays so tantalising that no realist in his sense will trust the sweet promises of a tenant that he will return the building after the stipulated period.
So the law has to make itself credit worthy.
The long distance between institution of recovery proceedings and actual dispossession runs often into a decade or more a factor of despair which can be obviated only by a special procedure.
Section 21 is the answer.
The law seeks to persuade the owner of premises available for letting for a particular or limited period by giving him the special assurance that at the expiry of that period the appointed agency will place the landlord in vacant possession.
As stated earlier, the critical need was for residential, not nonresidential housing.
Therefore, Section 21 confines this special remedy to letting for residential uses only.
Parliament had the wholsome fear that if the section were not controlled by many conditions it might open the flood gates for wholesale circumvention of the rent control legislation by ingenious landlords exploiting the 286 agonising need of houseless denizens.
Against this back drop, let us read Section 21 and highlight the essential conditions written into the provision: "21.
Where a landlord does not require the whole or any part of any premises for a particular period, and the landlord, after obtaining the permission of the Controller in the prescribed manner, lets the whole of the premises or part thereof as resident for such period as may be agreed to in writing between the landlord and the tenant and the tenant does not, on the expiry of the said period, vacate such premises, then, notwithstanding anything contained in Section 14 or in any other law, the Controller may, on an application made to him in this behalf by the landlord within such time as may be prescribed, place the landlord in vacant possession of the premises or part thereof by evicting the tenant and every other person who may be in occupation of such premises.
" We must notice that Section 21 runs counter to the general scheme and, therefore, must be restricted severely to its narrow sphere.
Secondly, we must place accent on every condition which attracts the Section and if any one of them is absent the Section cannot apply and, therefore, cannot arm the landlord with a resistless eviction process.
Thirdly, we must realise that the whole effect of Section 14 can be subverted by ritualistic enforcement of the conditions of sanction under Sec.
21 or mechanical grant of sanction therein.
Section 21 overrides Section 14 precisely because it is otherwise hedged in with drastic limitations and safeguards itself against landlords ' abuses.
What, then, are those conditions and safeguards? The first condition is that the landlord does not require the demised premises "for a particular period" only.
This means that he must indicate to the authority before which sanction is sought for letting what is the particular period for which he can spare the accommodation.
The Controller must be satisfied that the landlord means what he says and it is not a case of his not requiring the property indefinitely as distinguished from a specific or particular limited period of say one year, two years or five years.
If a man has a house available for letting for an indefinite period and he so lets it, even if he specifies as a pretense, a period or term in the lease, Section 21 cannot be attracted.
On the other hand, if he gives a special reason why he can let out only for a limited period and requires the building at the end of that period, 287 such as that he expects to retire by then or that he is going on a short assignment or on deputation and needs the house when be returns home it is good compliance.
The second condition is that the letting must be made for a residential purpose.
The house must be made over "as a residence".
If it is let out for a commercial purpose, Section 21 will not apply, whether the ritual of a sanction under that provision has been gone through or not.
Thirdly, the Controller 's permission is obligatory where he specifies the particular period for which he gives permission and further qualifies the permission for use as a residence.
The Controller exercises an important regulatory function on behalf of the community.
The fact that a landlord and a potential tenant together apply, setting out the formal ingredients of Section 21, does not relieve the Controller from being vigilant to inquire and satisfy himself about the requisites of the landlord 's nonrequirement "for a particular period" and the letting itself being "as a residence".
A fraud on the statute cannot be permitted especially because of the grave mischief that may be perpetrated in such event.
It is easy to envisage the terrible blow to the rent control law if Section 21 were freely permitted to subvert the scheme of Section 14.
Every landlord will insist ' on a tenant going through the formal exercise of Section 21, making ideal averments in terms of that Section.
The consequence will be that both the Civil Procedure Code which prescribes suits for recovery of possession and the Delhi Rent Control Act which prescribes grounds for eviction will be eclipsed by the pervasive operation of Section 21.
Neither grounds for eviction nor suits for eviction will thereafter be needed, and if the landlord moves the court for a mere warrant to place the landlord, through the court process, in vacant possession of the premises, he gets it.
No court fee, no decree, no execution petition, no termination of tenancy wish for possession and the court is at your command.
Such a horrendous situation will be the negation of the rule of law in this area.
So it is that we deem it necessary to lay down the law as implied in Section 21 When an application under Section 21 is filed by the landlord and/or tenant, the Controller must satisfy himself by such inquiry as he may make, about the compulsive requirements of that provision.
If he makes a mindless order, the Court, when challenged at the time of execution, will go into the question as to whether the twin conditions for sanction have really been fulfilled.
Of course, there will be a presumption in favour of the sanction being regular, but it will still be open to a party to make out his case that in fact and in truth the 288 conditions which make for a valid sanction were not present.
We do not agree with the statement of the law by the Delhi High Court striking a contrary note.
In this context, we may make special reference to Kasturi Lal 's case, a decision of the Delhi High Court reported in 1976 R.C.J.p.
It is true as Misra, J. in that case, following earlier decisions has observed that the provisions of Section 21 are designed to meet the problem of shortage of housing in Delhi.
If the landlord does not need the premises for a limited period, section 21 permits him to lease it out during that period.
Without the facility of section 21 the landlord might have preferred to keep the premises vacant, but that does not mean that the law surrenders itself to this landlord and releases him from all conditions.
That is why the need for sanction and the mandatory conditions for such sanction are specified in the section.
It is altogether wrong to import the idea that the tenant having taken advantage of induction into the premises pursuant to the permission, he cannot challenge the legality of the permission.
As between unequals the law steps in and as against statutes there is no estoppel, especially where collusion and fraud are made out and high purpose is involved.
The doctrine of estoppel cannot be invoked to render valid a proceeding which the legislature has, on grounds of public policy, subjected to mandatory conditions which are shown to be absent: "Where a statute, enacted for the benefit of a section of the public, imposes a duty of a positive kind the person charged with the performance of the duty cannot by estoppel be prevented from exercising his statutory powers.
A petitioner in a divorce suit cannot obtain relief simply because the respondent is estopped from denying the charges, as the court has a statutory duty to inquire into the truth of a petition".
It is an old maxim that estoppels are odious, although considerable inroad into this maxim has been made by modern law.
Even so, "a judgment obtained by fraud or collusion, even it seems a judgment of the House of Lords, may be treated as a nullity." (See Halsbury 's Laws of England, Vol.
16 fourth edition para 1553).
The point is that the sanction granted under section 21, if it has been procured by fraud or collusion, cannot withstand invalidity because, otherwise, high public policy will be given as hostage to successful collusion.
289 Law that non performs stultifies the rule of law and so it is that we stress the need for strict compliance.
Or else, the sanction is non est.
Collusion between the strong and the weak cannot confer validity where the mandatory prescriptions of the law are breached or betrayed.
We have said enough to make the point that it is open to the tenant in the present case to plead and prove that the sanction under Section 21 is invalid, and if it is void the executing court is not debarred from holding so.
We, therefore, hold on the first point that no question of amendment arises in the present case and the application before the Controller did not suffer from any deficiency.
On the second point we hold that it is perfectly open to the Controller to examine whether the sanction under Section 21 is a make believe, vitiated by fraud and collusion.
We make it clear that the Controller is concerned with delivery of possession at the expiry of the lease of 1975 and he will, therefore, examine the position with reference to that lease only.
The appellant tenant urged a further contention that because there was fraud the court could not assist the party in fraud even if both sides were involved in the fraud.
He invoked the doctrine of inpari delicto potior est conditio defendantis.
We are not inclined to examine these contentions but leave it open to the executing court to go into such pleas as are permissible at the execution stage.
Beyond that he has no jurisdiction but within that he has a duty to decide.
On these findings we dismiss the appeal but direct the Controller to go into the question of the validity of the sanction and such other objections as may be available in the light of our observations recorded above.
The first point raised is untenable and we should have directed costs while dismissing the appeal.
The second point raised is of great public moment and the appellant has broadly succeeded on that question.
The result is that the community has benefited by our declaration of the law and the parties must, therefore bear their respective costs throughout.
S.R. Appeal dismissed.

dataset_name: IN-Abs

summary:
Dismissing the appeal by special leave, the Court HELD: Section 21 of the Delhi Rent Control Act, 1958 carves out a category for special treatment.
While no landlord can evict without compliance with sections 14, 19 and 20 of the Act, a liberal eviction policy cannot be said to under lie in section 21.
Parliament was presumably keen on maximising accommodation available for letting, realising the scarcity crisis.
One source of such spare accommodation which is usually shy is potentially vacant building or part thereof which the landlord is able to let out for a strictly limited period provided he has some credible assurance that when he needs he will get it back.
The law seeks to persuade the owner of the premises available for letting for a particular period by giving him a special assurance that at the expiry of that period the appointed agency will place the landlord in vacant possession.
And, Section 21 confines the special remedy to letting for residential uses only.
Parliament had the wholesome fear that if the section were not controlled by many conditions it might open the floodgates for wholesale circumvention of the rent control legislations by ingenious landlords exploiting the agonising need of houseless denizens.
[285B D, G H, 286A] 2.
Section 21 over rides section 14 precisely because it is otherwise hedged in with drastic limitations and safeguards itself against landlords ' abuses.
The first condition is that the landlord does not require the demised premises "for a particular period" only.
This means that he must indicate to the authority before which sanction is sought for letting what is the particular period for which he can spare the accommodation.
The Controller exercises an important regulatory function on behalf of the community.
The fact that a landlord and a potential tenant together apply, setting out the formal ingredients of Section 21, does not relieve the Controller from being vigilant to inquire and satisfy himself about the requisites of the landlord 's non requirement "for a particular period" and the letting itself being "as a resident".
A fraud on the statute cannot be permitted especially because of the grave mischief that may be perpetrated in such event.
[286E, H, 287A D] 3.
There would be a terrible blow to the rent control law if section 21 were freely permitted to subvert the scheme of Section 14.
Every landlord will insist on a tenant going through the formal exercise of Section 21, making ideal averments in terms of that Section.
The consequence will be that both the Civil Procedure Code which prescribes suits for recovery of possession and the Delhi Rent Control Act which prescribes grounds for eviction will be eclipsed by the pervasive operation of Section 21.
Neither grounds for eviction nor suits for eviction will thereafter be needed, and if the landlord moves the Court 282 for a mere warrant to place the landlord, through the Court process, in vacant possession of the premises, he gets it.
No court fee, no decree, no execution petition, no termination of tenancy wish for possession and the court is at your command.
Such a horrendous situation will be the negation of the rule of law in this area.
[287 D F] 4.
When an application under Section 21 is filed by the landlord and/or tenant the Controller must satisfy himself by such inquiry as he may make, about the compulsive requirements of that provision.
If he makes a mindless order, the Court, when challenged at the time of execution will go into the question as to whether the twin conditions for sanction have really been fulfilled.
Of course, there will be a presumption in favour of the sanction being regular, but it will still be open to a party to make out his case that in fact and in truth the conditions which make for a valid sanction were not present.
[287 G H, 288A] 5.
The sanction granted under section 21, if it has been procured by fraud and collusion cannot withstand invalidity because, otherwise, high public policy will be given as hostage to successful collusion.
The doctrine of estoppel cannot be invoked to render valid a proceeding which the legislature has, on grounds of public policy subjected to mandatory conditions which are shown to be absent.
As between unequals the law steps in and as against statutes there is no estoppel, especially where collusion and fraud are made out and high purpose is involved.
[288D E, G H] 6.
Law that non performs stultifies the rule of law and hence the need for strict compliance.
Or else, the sanction is non est.
Collusion between the strong and the weak cannot confer validity where the mandatory prescriptions of the law are breached or betrayed.
[289A]


judgement:
: Special Leave Petition (Crl.) 2599 of 1979.
From the Judgment and Order dated 9 7 1979 of the Punjab and Haryana High Court in Crl.
A. 1228/1976.
section K Sabharwal and R.C. Kohli for the petitioner.
The order of the Court was delivered by, KRISHNA IYER, J, A rapist if the concurrent findings of the courts below were correct has chosen to seek special leave to challenge his crime and punishment, and his counsel has attacked the verdict of culpability as wholly unfounded.
Indeed, it is redundant, and absent exceptional circumstances, out of bounds, for this Court, exercising its jurisdiction under article 136, to launch upon an exploration and re appreciation of the evidence, its strengths and weaknesses with a view to sit in judgment over the holdings of the High Court in affirmance of those of the trial Court.
Briefly, we will touch upon one or two circumstances without claiming to be exhaustive in any manner.
One Shashi Bala of Ambala was sleeping, with her mother and other children, outside her house in hot July (1975).
The petitioner, in the company of another (acquitted accused), carried her away under intimidation to a neighbouring godown belonging to one Tilak Raj (another acquitted accused) and in that secluded venue committed rape on the young women.
After subjecting her to these beasteal acts of lust, Shashi Bala, who by then was nearly unconscious, was put back in her cot from where she had been removed.
In the morning, the mother of the victim found blood on the daughter 's salwar and thereupon she complainingly narrated the criminal assault of the previous night.
On the return of the father, P.W. 7, who had been away, the victim went, in his company, to the police station, lodged a report which was followed by investigation and charge sheet.
The Court, after a trial, convicted the present petitioner but, on grounds of benefit of doubt, acquitted the rest.
Medical evidence showed that the raped girl was below 16 years of age.
We are not too happy about the acquittal but since the State has not chosen to come up in appeal against the acquittal, we do not probe the matter further.
Counsel for the petitioner persistently urged that the evidence of the prosecutrix, without substantial corroboration, was inadequate to rest a conviction under section 376 I.P.C. He relied on observations of this Court in Gurucharan Singh vs State of Haryana for the pro 307 position that although a prosecutrix is not an accomplice, her evidence, as a rule of prudence, is viewed by courts unfavourably unless reinforced by corroboration "so as to satisfy its conscience that she is telling the truth and that the present accused of rape on her has not been falsely implicated".
It is true that old English cases, followed in British Indian courts, had led to a tendency on the part of judge made law that the advisability of corroboration should be present to the mind of the Judge "except where the circumstance make it safe to dispense with it".
Case law, even in those days, had clearly spelt out the following propositions: "The tender years of the child, coupled with other circumstances appearing in the case, such, for example as its demeanour, unlikelihood of tutoring and so forth, may render corroboration unnecessary but that is a question of fact in every case.
The only rule of law is that this rule of prudence must be present to the mind of the judge or the jury as the case may be and be understood and appreciated by him or them.
There is no rule of practice that there must, in every case, be corroboration before a conviction can be allowed, to stand." "It would be impossible, indeed it would be dangerous to formulate the kind of evidence which should, or would, be regarded as corroboration.
Its nature and extent must necessarily vary with circumstances of each case and also according to the particular circumstances of the offence charged.
" Observations on probative force of circumstances are not universal laws of nature but guidelines and good counsel.
We must bear in mind human psychology and behavioural probability when assessing the testimonial potency of the victim 's version.
What girl would foist a rape charge on a stranger unless a remarkable set of facts or clearest motives were made out? The inherent bashfulness, the innocent naivete and the feminine tendency to conceal the outrage of masculine sexual aggression are factors which are relevant to improbabilise the hypothesis of false implication.
The injury on the person of the victim, especially her private parts, has corroborative value.
Her complaint to her parents and the presence of blood on her clothes are also testimony which warrants credence.
More than all, it baffles belief in human nature that a girl sleeping with her mother and other children in the open will come by blood on her garments and injury in her private parts unless she has been subjected to the torture of rape.
And if rape has been committed, 308 as counsel more or less conceded, why, of all persons in the world, should the victim hunt up the petitioner and point at him the accusing finger? To forsake these vital considerations and go by obsolescent demands for substantial corroboration is to sacrifice commonsense in favour of an artificial concoction called 'Judicial ' probability.
Indeed, the court loses its credibility if it rebels against realism.
The law court is not an unnatural world.
We are not satisfied that merely because the trial court has ultra cautiously acquitted someone, the higher court must, for that reason, acquit everyone, Reflecting on this case we feel convinced that a socially sensitised judge is a better statutory armour against gender outrage than long clauses of a complex section with all the protections writ into it.
N.V.K. Petition dismissed.

summary:
The prosecution alleged that a girl below 16 years of age was sleeping outside her house with her family and that the petitioner in the company of another (acquitted accused) carried her away under intimidation to a neighbouring godown belonging to another acquitted accused and in that secluded venue committed rape on the young woman and afterwards put her back on her cot.
The trial court convicted the petitioner but on grounds of benefit of doubt acquitted the other accused.
The High Court affirmed this order.
In the special leave petition to this Court, it was contended on behalf of the petitioner that the evidence of the prosecutrix without substantial corroboration, was inadequate to rest a conviction under section 376 IPC.
Dismissing the special leave petition, ^ HELD 1.
To forsake vital consideration and go by obsolete demands for substantial corroboration is to sacrifice commonsense in favour of an artificial concoction called 'judicial ' probability.
[308A] 2.
Human psychology and behavioural probability must be borne in mind when assessing the testimonial potency of the victim 's version.
What girl would foster rape charges on a stranger unless a remarkable set of facts or cleanest motives are made out? The inherent bashfulness, the innocent naivete and the feminine tendency to conceal the outrage of masculine sexual aggression are factors which are relevant to improbabilise the hypothesis of false implication.
The injury on the person of the victim has corroborative value.
[307G] 3.
The court loses its credibility if it rebels against realism.
The law court is not an unnatural world.
[308 B] 4.
Merely because the trial court has ultra cautiously acquitted someone, the higher court must, for that reason, cannot acquit everyone.
[308C] 5.
A socially sensitized judge is a better statutory armour against gender outrage than long clauses of a complex section with all the protections writ into it.
[308C] 6.
Observation on probative force of circumstances are not universal laws of nature but guidelines and good counsel.
[307 F] Gurcharan Singh vs State of Haryana ; referred to. 306


judgement:
Civil Appeal No. 424 of 1979 Appeal by Special Leave from the Judgment and order dated 23 8 1978 of the Allahabad High Court in Second Appeal No. 34/78.
D. R. Gupta and B.V. Desai for the Appellant.
B. R. Agarwala for the Respondents.
The Judgment of the Court was delivered by SARKARlA, J.
This appeal by special leave is directed against a judgment, dated August 23, 1978, whereby a learned Single Judge of the Allahabad High Court dismissed the appeal of the appellant herein.
It arises out of these circumstances.
The plaintiff, Dr. Rajendra Prakash Sharma, is the appellant before us.
He filed a suit in the court of the Civil Judge, Bulandshahar, alleging that the house in dispute was owned by one Qazi Abdul Rashid, son of Qazi Abdul Razak.
Qazi Abdul Rashid had let out this house to Dr. Bhu Deo Sharma, father of the appel 211 lant, who was paying rent for the same to Qazi Abdul Rashid.
He further alleged that the said Abdul Rashid had migrated to Pakistan and the house in dispute was declared evacuee property under the then existing law.
Later on, it was put to auction on January 29, 1969 under Section 20 of the Displaced Persons (Compensation & Rehabilitation) Act, 1954, and was purchased by the plaintiff for a consideration of Rs. 1,000/ , and the appellant was declared purchaser of this property with effect from April, 1, 1969.
Sale Certificate, dated March 19, 1969, was also issued in his favour.
He further pleaded that the defendants respondents had also filed Suit No. 67 of 1970 for ejectment and arrears of rent against the appellant 's father, Bhu Deo Sharma.
The suit was decreed on May 10, 1971, and that in pursuance of that decree they were trying to dispossess the plaintiff appellant He further stated that since he was not impleaded in the ejectment suit, he was not bound by that decree.
On these facts, the plaintiff appellant claimed a declaration of his title to the property in question and further prayed for a perpetual injunction restraining the defendants from dispossessing him in execution of the Ir said decree obtained by the defendants in Suit No. 67 of 1970.
The defendants resisted the suit.
They denied that the property in dispute was ever declared evacuee property or that it was ever acquired under the provisions of the Act of 1954.
They asserted that the appropriate authorities never passed any order under Section 7 of the declaring this property to be evacuee property.
The contesting defendant, Gyan Chandra, further pleaded that Qazi Abdul Rashid had only 1/16th share in the house in question which was purchased by the defendants father (since deceased) and, therefore, the defendants are exclusive owners of the house.
Gyan Chandra further alleged that Qazi Abdul Rashid had migrated to Pakistan in the year 1967, long after he had transferred his interest and share in the house in question; that Dr. Bhu Deo Sharma, father of the appellant had in collusion with the Custodian Department, prepared fictitious proceedings relating to the sale of the house in question; that the Custodian Department had no jurisdiction to declare the property in suit as evacuee property, much less could they sell it under the Act of 1954.
According to the defendant, the auction if any held, was a nullity having been brought about by misrepresentation and fraud.
The trial court held that Qazi Abdul Rashid was not the owner of the house in question; that the entire proceedings taken by the Custodian Department were illegal and without jurisdiction and the plaintiff did not acquire any title by virtue of the sale held by the Authorities 212 under the Displaced Persons Compensation and Rehabilitation) Act (No. 44 of 1954) (for short, called the 1954 Act).
In the result, the trial court dismissed the plaintiff 's suit.
On appeal, the Additional District Judge, Bulandshahar affirmed the findings of the trial court.
He held that the jurisdiction of the civil n court was not barred by section 46 of the Administration of Evacuee Property Act (No. 31 of 1950) (hereinafter called the 1950 Act) to go into the question whether or not the matter had been adjudicated upon by the Authorities under that Act.
It found that no inquiry, as contemplated under Section 7 of Act 31 of 1950 was held and no Notification was issued by the Authorities under that Act, declaring the suit property to be evacuee property.
It held that Abdul Rashid had no title or interest, whatever, in the house in question after July 31, 1953, when, in accordance with the decree of the Civil Court in the partition Suit No. 289 of 1953, PhoolChand had deposited Rs. 343/ regarding the value of 1/6th share of Abdul Rashid in this property.
on the deposit of that amount, Phool Chand and his sons had become sole ' owners of the property in question and the plaintiff 's father became their tenant of the suit property.
It was in that capacity that a decree for ejectment was passed against him and in favour of the respondents.
In the result, it was held that since the property had never been declared evacuee property after following the prescribed procedure under the Act and the Rules framed thereunder, the rights of the defendants respondents remained unaffected by the ' auction held by the Custodian Department and the consequent issue of the sale certificate in favour of the plaintiff appellant.
The High Court affirmed the concurrent findings of the two courts below and dismissed the Second Appeal preferred by the plaintiff.
It agreed with the lower appellate court that the auction in favour of the plaintiff appellant was a nullity and wholly without jurisdiction and did not confer any rights on him because the suit property had never been declared as evacuee property in accordance with law.
It also held that Abdul Rashid was in India much after the repeal of the U.P. Ordinance 1 of 1949 and consequently there was no question of the property vesting automatically in the Custodian under the aforesaid ordinance.
The High Court, however, granted six months ' time to the plaintiff appellant to deliver vacant possession of the suit house to the defendants respondents without the intervention of the court.
After obtaining special leave under Article 136 of the Constitution, the aggrieved plaintiff has now come in appeal before this Court.
213 The main contention of the learned counsel for the appellant is two fold: (a) In view of Section 46 of the 1950 Act, the Civil Court had no jurisdiction to adjudicate upon the question whether; the suit property or any right or interred therein is or is not evacuee property.
(Reliance for this contention has been placed on the decision of this Court in Custodian of Evacuee Property, Punjab and ors.
vs Jafran Begum.
(b) The sale of the suit property has been effected in favour of the appellant under Section 20 of the 1954 Act, after it had been acquired by the Central Government under Section 12 of that Act, free from all encumbrances, and formed part of the compensation pool.
It will therefore, be presumed that prior to its acquisition under Section 12 of the 1954 Act, it was evacuee property vesting in the custodian.
The orders of its acquisition passed under Section 12 and its sale under Section 20 of the 1954 Act had become final and conclusive.
The respondent could not be allowed to go behind those orders and question their finality on the ground that the property has never been evacuee property vesting in the custodian, because Section 27 of 1954 Act bars the jurisdiction of the Civil Court to go into this question.
The only remedy of the defendants respondents is to claim compensation under the 1954 Act.
Reference in this connection ' has been made to N. section Gujral vs Custodian of Evacuee Property and Anr.
Before dealing with these contentions, some basic facts concurrently found by all the courts below may be noticed.
Qazi Abdul Rashid obtained a money decree in suit No. 523 of 1935 against one Ami Chand S/o Phool Chand and brother of present respondents (original defendants 1 to 4).
In execution of that decree, he purchased with the permission of the court, the share of Ami Chand in 1937.
At that time, apparition suit No. 3 of 1931 amongst the family members of the said Ami Chand was pending in the Court of the Civil Judge, Bulandshahr.
Qazi Abdul Rashid did not join as a party in the said partition suit.
However, he instituted Suit No. 452 of 1949 against the said Phool Chand and others in the court of the Munsif, Khurja for partition and separate possession of his share.
The suit was contested.
The Munsif decreed the suit holding that Qazi Abdul Rashid had 1/16th share in the house in question and one other shop.
Applying the provisions of Section 4 of the Partition Act, the Munsif evaluated Qazi Abdul Rashid 's 1/16th share in the suit house at Rs. 343/ and directed the sale of that share.
214 Feeling aggrieved by the said decree, Qazi Abdul Rashid preferred Civil Appeal No. 289 of 1953.
The First Appellate Court by its judgment, dated December 20, 1954 (exhibit A 2), partly allowed the appeal and modified the decree of the trial court in so far as it related to the shop.
But it upheld the decree of the trial court in so far as it related to the house now in question, whereby Phool Chand defendant was required to deposit Rs. 343/ as the value of Qazi Abdul Rashid 's share.
In accordance with the decree affirmed by the First Appellate Court, Phool Chand on July 31, 1953 deposited Rs. 343/ (vide exhibit A 1) to the credit of Qazi Abdul Rashid, the then plaintiff in the Court.
Qazi Abdul Rashid being aggrieved by the decree of the First Appellate Court, preferred Second Appeal No. 235 of 1955 in the High Court.
The High Court dismissed this appeal as abated by an order, dated February 25, 1959 (exhibit A l), due to the failure of Qazi Abdul Rashid to take proper steps for substitution of the legal representatives of the then respondents 7 and 11, who had died during the pendency of the appeal.
During the pendency of the said litigation, Phool Chand and his two sons, Gyan Chand and Raghbur Sharan, instituted Suit No. 323 of 1953 in the court of the Munsif, Khurja for the recovery of the damages for use and occupation of the house in dispute against Qazi Abdul Rashid.
By a judgment dated September 30, 1959 (exhibit A 4) the trial court decreed that suit against Qazi Abdul Rashid.
Aggrieved by that judgment and decree, Qazi Abdul Rashid preferred Civil Appeal No. 461 of 1959 which was partly allowed by the First Appellate Court on December 21, 1960.
The trial court further found and this finding has been upheld by the First Appellate Court and the High Court that Abdul Rashid definitely remained in India at least till 1963, if not till 1965.
Upto 1963, he was directly receiving rent from his tenant, the father of the present plaintiff appellant, in respect of the suit house.
This was held primarily on the basis of documentary evidence (exhibit A 14/A).
In view of the fact that Qazi Abdul Rashid remained in India I continuously upto 1963, no question of automatic vesting under the I U.P. Ordinance No. 1 of 1949, could arise.
That ordinance was not applicable to him at all.
For our purpose, only the 1950 Act and the 1954 Act are relevant.
It will, therefore, be worthwhile to notice, very briefly, the material provisions of these statutes.
215 Clause (d) of Section 2 of the 1950 Act defines "evacuee;" this A definition so far as material, reads: "Evacuee means any persons (i) who on account of the setting up of the Dominions of India and Pakistan or on account of civil disturbances or the fear of such disturbances, leaves or has, on or after the 1st day of March, 1947, left any place in a State for any place outside the territories now forming part of India, or (ii) who is a resident in any place now forming part of Pakistan and who for that reason is unable to occupy, supervise or manage in person his property in any part of the territories to which this Act extends, or whose property in any part of the said territories has ceased to be occupied, supervised or managed by any person or is being occupied, supervised or managed by an unauthorised person, or. " (iii) to (iv) are not relevant for this case.
Clause (h) defines "evacuee property" to mean "any property of an 1 evacuee (whether held by him as owner or as a trustee or as a beneficiary or as a tenant or in any other capacity) and includes any property which has been obtained by any person from an evacuee after the 14th day of August 1947, by any mode of transfer which is not effective by reason of the provisions contained in Section 40 :) but does not include . . " Sub section (1) of Section 7 requires that where the Custodian is of opinion that any property is evacuee property within the meaning of this Act, he may after causing notice thereof to be given in such manner as may be prescribed to the persons interested, and after holding such inquiry into the matter as the circumstances of the case permit, pass an order declaring any such property to be evacuee property.
Sub section (3) of the Section peremptorily requires the Custodian to notify from time to time by publication in the official Gazette or in such other manner as may be prescribed all p properties declared by him to be evacuee properties under Sub section (1).
Rule 6 of the Rules framed under the 1950 Act requires that the notice to be served under Section 7(1) on persons interested in the property proposed to be declared evacuee property shall be in Form I. Section 8 provides, "Any property declared to be evacuee property under Section 7 shall be deem d to have vested in the Custodian for the State (a) in the case of the property of an evacuee as defined in sub clause (i) of clause (d) of Section 2, from the date on which 216 he leaves or left any place in a State for any place outside the territories now forming part of India; (b) in the case of the property of an evacuee as defined in sub clause (ii) of clause (d) of Section 2, from the 15th day of August, 1947; and (c) in the case of any other property, from the date of the notice given under sub section (I) of Section 7 in respect thereof.
(The rest is not material).
" From a conjoint reading of Sections 7 and 8, it is clear that the making of a declaration after inquiry under Section 7, that the property is 'evacuee property ' is a sine qua non for giving the Custodian dominion over the property.
If no proceeding is taken under Section 7, there can be no vesting of the property in the Custodian.
(See observations in Fazalbhoy vs Official Trustee of Maharashtra.
The other point to be noted is that in the case of an `evacuee ' falling under sub clause(i) of the definition of `evacuee ' that is one, who on account of the things mentioned in that sub clause, leaves India or has left India on or after August 14, 1947, the vesting will date from the date he leaves India for any outside destination.
Tn the instant case, Qazi Abdul Rashid left India to settle in Pakistan long after August 14, 1947 (in 1963).
Section 9 gives power to the Custodian to take possession of evacuee property which vests in him under Section 8.
Then, there is Section 7A which was inserted by the Administration of Evacuee property (Amendment) Act, 1954 (42 of 1954) with effect from May 7, 1954.
"Notwithstanding anything contained in this Act, no property shall be declared to; be evacuee property on or after the 7th day of May 1954:" This is made subject to two Provisions.
Clause (a) of the First Proviso saves from the application of this Section any property in respect of which proceeding are pending on the 7th day of May, 1954 for declaring such property to be evacuee property.
Clause (b) of the Proviso saves from the bar of this Section property of any person who became an evacuee on or after the Ist day of March, 1947, and who on the 7th day of May, 1954 was resident in Pakistan.
The second Proviso lays down that no notice under Section 7 for declaring any property to be evacuee property with reference to Clause (b) of the preceding Proviso shall be issued after the expiry of six months from the commencement of the Administration of Evacuee 217 Property (Amendment Act, 1954).
Then, there are three Explanations, which are not material for our purpose.
It is clear from the facts concurrently found in the instant case that Qazi Abdul Rashid was throughout residing in India and personally managing the suit property and collecting its rent till 1963.
He migrated or went away from India for good sometime in 1963 or thereafter.
Therefore, if the Custodian had not taken any proceedings under Section 7 of the 1950 Act to declare the suit property as evacuee property before the 7th day of May 1954, and no such proceedings were pending on May 7, 1954, the property of Qazi Abdul Rashid could not be declared evacuee property under the Act, the power of the Custodian to do so having been terminated by Section 7A.
It was for the plaintiff appellant to show by producing relevant notifications or other documentary evidence that the Custodian had taken proceedings and declared the suit property to be evacuee property in accordance with the provisions of Section 7 or that such proceedings had been initiated earlier and were pending on the 7th day of May, 1954.
Despite ample opportunity granted to the plaintiff, he did not produce any such documentary evidence in the courts below.
All that he showed was that the Rehabilitation Authorities had, purporting to act under the 1954 Act, sold the suit property to him and issued the sale certificate in his favour on April 1, 1969.
Section 24 gives a person aggrieved of an order made under Section 7 by the Custodian a right of appeal.
Section 27 confers power of revision on the Custodian General to revise suo motu or on the application made to him, any order passed by the Custodian if it is rot found to be legal or proper.
Sections 28 and 46 bar the jurisdiction of courts.
Section 28 reads thus: "Save as otherwise expressly provided in this Chapter, every order made by the Custodian General, Custodian, Additional Custodian, Authorised Deputy Custodian, Deputy Custodian or Assistant Custodian shall be final and shall not be called in question in any Court by way of appeal or revision or in any original suit, application or execution proceeding.
" Section 46 of the 1950 Act provides: "Save as otherwise expressly provided in this Act, no civil or revenue court shall have jurisdiction (a) to entertain or adjudicate upon any question whether any property or any right to or interest in any property is or is not evacuee property; or 218 (c) to question the legality of any action taken by the Custodian General or the Custodian under this Act, or (d) in respect of any matter which the Custodian General or the Custodian is empowered by or under this Act to determine." The scope of Sections 28 and 46 of the 1950 Act came up for consideration before this Court in Jafran Begum 's case (ibid).
The facts of that case were that a person who was in possession of a house in India, migrated to Pakistan.
Notice was issued to his son under s.7 of the , and after hearing him the Deputy Custodian declared the house to be evacuee property.
Jafran Begum, who was the mother of the evacuee and on whom the notice under s.7 of the Act was not served, started proceedings before the Custodian, claiming that the owner of the house had executed a will bequeathing the property to her and so the property could not be declared evacuee property.
That application was dismissed by the Custodian.
When she failed before the authorities constituted under the Act, she filed a suit in the civil court basing her case on the will and prayed for a permanent injunction restraining the authorities from evicting her from the house.
On the question of jurisdiction being raised, the High Court held that determination of a complicated question of law relating to title by authorities under the 1950 Act was not final and could be reopened in the civil court, and Section 46 did not bar the civil court 's jurisdiction to entertain such a question.
After examining the scheme of the 1951) Act, Wanchoo, .J., speaking for the Bench constituted by three learned Judges, laid down the law, thus: "(Where) the question whether certain properties are evacuee properties has been decided under section 7 etc., whether that decision is based on issues of fact or issues of law, jurisdiction of courts is clearly, barred under section 46(a).
It is difficult to see how a distinction can be drawn between decisions under section 7 based on questions of fact and decisions based on questions of law.
The decision is made final whether based on issues of law or of fact by section 28 and section 46 bars the jurisdiction of civil and revenue courts in matters which are decided under S.7 whatever may be the basis of decision, whether issues of factor of law and whether simple or complicated." (Emphasis supplied) 219 ".
S.46 is a complete bar to the jurisdiction of civil or revenue courts in any matter which can be decided under section 7.
This conclusion is reinforced by the provision contained in section 4(1) of the Act which provides that the Act overrides other laws and would thus override section 9 of the Code of Civil Procedure on a combined reading of Ss.4, 28 and 46.
(But). section 46 or section 28 cannot bar the jurisdiction of the High Court under article 226 of the Constitution.
" (Emphasis supplied) From the crucial words underlined in the above extract, it is clear that even according to the rule of the above decision section 46 will not bar the jurisdiction of the civil court where the Custodian has never declared the property as evacuee property after taking proceedings under Section 7 of the l 950 Act.
A Full Bench of the Allahabad High Court in Khalil Ahmed Khan vs Malka Mehar Nigar Begum(1), held that where the matter as to whether a property is evacuee property or not, has never been adjudicated upon by the Custodian himself but he merely takes action on the basis of the judgment of the court of first instance, without deciding the matter for himself, that judgment being subject to correction by the court of appeal does not become final merely because the Custodian had taken action on the basis thereof.
In such a case, the jurisdiction of the civil court of appeal to determine the correctness of an adjudication already made by the civil court is not barred.
This decision was noticed by this Court in Jafran Begum (ibid), and it was observed that to some extent, "this case is in line with the view we have taken.
" The matter can be looked at from another angle also.
Clauses (a), (c) and (d) of section 46 postulate that at the time when the question whether or not a property is evacuee property comes for adjudication the power of the Custodian General or the Custodian under this Act of 1950 to determine that question is subsisting.
That is to say, if at the point of time when the question arises, the power of the authorities constituted under this Act to adjudicate that question stands terminated or extinguished by the operation of Section 7A of 1954, none of the clauses (a), (c) and (d) of section 46 will bar the jurisdiction of the civil court to determine that question which had not been decided by the custodian during the period, he had the power to determine it.
Section 28 has no application to the facts of the instant case because no order made by any of the authorities mentioned in that section is 220 being called in question.
Section 46, also, does not come in the way because no proceedings under section 7 of the 1950 Act to declare the suit house as evacuee property were taken by the Custodian against Qazi Abdul Rashid.
No notification under sub section (3) of section 7 published in the official Gazette has been placed on the record.
Nor was it shown that any proceedings initiated under section 7 of the Act to declare it evacuee property were pending on May 7, 1954, and the question of saving those proceedings under the proviso to section 7A does not arise.
Qazi Abdul Rashid was throughout a resident of India till 1963 and was personally managing the suit house and collecting rent of it from the tenant.
After May 7, 1954, therefore, the Custodian had no jurisdiction under the 1950 Act to declare the suit house as evacuee property.
The jurisdiction of the courts below to go into this question was thus not barred by anything in sections 28 and 46 of the 1950 Act.
We, therefore, negative the first contention of the appellant.
Now let us have a look into the relevant provisions of the 1954 Act.
Section 2(c) of the 1954 Act defines "evacuee property" to mean any property which has been declared or is deemed to have been declared as evacuee property under the .
At this place, it may be recalled that the second part of the definition which contains a deeming provision has no application to the facts of the instant case because Qazi Abdul Rashid was throughout residing in India till his migration to Pakistan in 1963.
That is to say, he had not become an evacuee before the repeal of the U.P. Ordinance No. 1 of 1949.
This ordinance is not relevant for the purposes of the present case.
The first part of the definition, also, is not applicable because the suit house has never been declared as evacuee property under the 1950 Act.
The next provision is to be found in section 12, which reads as follows: "section 12.
Power to acquire evacuee property for rehabilitation of displaced persons. (1) If the Central Government is of opinion that it is necessary to acquire any evacuee property for a public purpose, being a purpose connected with the relief and rehabilitation of displaced persons, including payment of compensation 221 to such persons, the Central Government may at any time acquire such evacuee property by publishing in the official Gazette a notification to the effect that the Central Government has decided to acquire such evacuee property in pursuance of this section.
(2) On the publication of a notification under sub section (1), the right, title and interest of any evacuee in the evacuee property specified in the notification shall, on and from the beginning of the date on which the notification is so published, be extinguished and the evacuee property shall vest absolutely in the Central Government free from all encumbrances.
(3) It shall be lawful for the Central Government, if it so considers necessary, to issue from time to time the notifications referred to in sub section (1) in respect of (a) all evacuee property generally; or (b) any class of evacuee property; or (c) all evacuee property situated in a specified area; or (d) any particular evacuee property.
(4) All evacuee property acquired under this section shall form part of the compensation pool.
" It may be noted that the necessary prerequisite for acquiring property under Section 12 is that it must be 'evacuee property ' as defined in section 2(c) of the 1954 Act.
In the absence of this essential prerequisite, the Central Government is not competent to acquire that property under this section for throwing it into the compensation pool.
This prerequisite or condition precedent, as already noticed, was lacking in the instant case.
No notifications published in the official Gazette either under sub section (I) or sub section (3) of section 12 appear to have been brought on the record of this case.
Our attention was not drawn to any such notifications.
Then, there is section 20 which confers power on the managing officer to transfer any property out of the compensation pool by sale or in any other manner indicated in clauses (b) to (e) of that section.
Again, the necessary prerequisite for sale is that the property must have been declared under section 7 of the 1950 Act to be evacuee property by the Custodian or it must be evacuee property under the 222 deeming provisions of any law which may be applicable to the case of the evacuee.
In other words, only that property which was evacuee property could be acquired under section 12 and form part of the compensation pool which satisfies the definition of "evacuee property" given in section 2(c) of the 1954 Act.
If the property was never evacuee property, as defined in section 2(c), it does not legally form part of the compensation pool and, therefore, cannot be disposed of under Section 20 or the Rules framed under this statute.
Then, there are Sections 22, 23 and 24.
Section 22 gives a right of appeal to a person aggrieved by an order of the Settlement officer or a managing officer, to the Settlement Commissioner.
Any person aggrieved by the order of the Settlement Commissioner/Additional Settlement Commissioner/Assistant Settlement Commissioner or a managing officer has been given a right to prefer an appeal to the Chief Settlement Commissioner under Section 23.
But no appeal is competent from any order passed in appeal under Section 22.
Section 24 confers the power of revision on the Chief Settlement Commissioner to revise any order of the authorities mentioned in that Section, including that of the managing officer.
Some argument was made by the learned counsel for the appellant that the only remedy of the respondents was to prefer an appeal or revision under the aforesaid provisions of this Act and that, since 1.
they did not avail of the same under Section 27, the sale made by the managing officer in favour of the plaintiff appellant has become final and cannot be questioned in any court.
Section 27 reads thus: "27.
Finality of orders.
Save as otherwise expressly provided in this Act, every order made by any officer or authority under this Act, including a managing corporation, shall be final and shall not be called in question in any court by way of an appeal or revision or in any original suit, application or execution proceeding.
" It will be seen that Section 27 is not attracted because the plaintiff, who filed the original suit and is now coming before us by way of appeal, is not questioning the finality of the order of the sale alleged to have been made by the managing officer.
It is the defendant respondents who are resisting the plaintiff 's claim on the ground that the sale is a nullity.
It could not be made under this Act of 1954 for the reason that it was never declared evacuee property under Section 7 of the Act and thus never formed part of the compensation pool.
The words "under this Act" occurring in Section 27 are significant They show that those orders which are not made by any officer or 223 authority in accordance with the provisions of this Act, but outside the provisions of this Act in excess of jurisdiction, can be called in question in the civil court.
It may be noted that the language of Section 27 is not as wide as that of Section 46 of the 1950 Act.
The facts of N.S. Gujral (ibid) were entirely different.
There, an Indian citizen held a money decree against a person who, subsequent to the passing of the decree, turned an evacuee.
It was held that at no time, the decree holder had any right whatsoever in the property which vested in the Central Government on the issue of the notification under Section 12.
It was further held that though the decree holder cannot claim to proceed against the property in suit ' or its income after the date on which it vested in the Central Government by virtue of the notification under Section 12, he can ask the Custodian to pay him out of the moneys ' lying with him on the date ' of such vesting if he can satisfy him in the manner provided in Section 10(2)(n) read with Section 10(1) of the 1950 Act.
The ratio of that decision has no application to the facts of the pr The second contention, also, being meritless, is over ruled.
For the foregoing reasons, the appeal fails and is dismissed with costs.
Before parting with this judgment, we may note here that at the conclusion of final arguments in this Court, counsel for the appellant represented that his client was making all efforts to search out and produce the Gazette Notification, whereby the suit property was declared and notified as evacuee property by the Custodian under subsection (3) of Section 7 of the 1950 Act.
He wanted some time.
We therefore, reserved this judgement to give the plaintiff appellant a last chance to produce such a notification of which the Court could take judicial notice.
But, he has failed to produce any such Gazette Notification.
Instead, he has produced, what purports to be, a copy of an order, dated January 5, 1951, of the Assistant Custodian.
This is not a copy of any Gazette Notification of which judicial notice, without formal proof, could be taken.
We, therefore, do not find any good ground to reopen the case and decline the appellant 's request for permitting him to produce additional evidence at this very late stage.
N V K. Appeal dismissed.

summary:
The appellant field a suit in the civil court alleging that the house in dispute was owned by one Abdul Rashid and that he had let out the house to his father who was paying rent to him, that Abdul Rashid had migrated to Pakistan and the house was declared evacuee property.
Later, the house was put to auction on January 29, 1969 under section 20 of the , was purchased by him and that the sale certificate was also issued.
He further pleaded that the respondents defendants had also filed suit No. 67 of 1970 for ejected and arrears of rent against his father, that the suit was decreed on May 10, 1971, and that in pursuance of that decree they tried to dispossess him, and as he was not impleaded in the ejected suit, he was not bound by that decree.
The appellant claimed a declaration of his title to the property and prayed for perpetual injunction restraining the defendants respondents from dispossessing 13: him in execution of the ejected decree.
The respondents resisted the suit, denied that the property in dispute was ever declared evacuee property or that it was ever acquired under the provisions of the Act of 1954, and asserted that the appropriate authorities never passed any order under section 7 of the declaring the property to be evacuee property.
The 1st defendant further pleaded that Abdul Rashid had only 1/6th share in the house in question which was purchased by his father and therefore the respondents are exclusive owners of the House.
The said Abdul Rashid had migrated to Pakistan in the year 1967 long after he had transferred his interest and share in the house in question and that the father of the appellant had in collusion with the Custodian Department prepared fictitious proceedings relating to the sale of the house in question, that the Custodian Department had no jurisdiction to declare the property was evacuee property, much less could they sell it under the Act of 1954, and that the auction if any held, was nullity having been brought about by misrepresentation and fraud.
The trial court held that Abdul Rashid was not the owner of the house in question, that the entire proceedings taken by the Custodian Department were illegal and without jurisdiction and the plaintiff did not acquire any title by virtue of the sale held by the Authorities under the of 1954, and accordingly dismissed the suit.
208 On appeal, the Additional District Judge, affirmed the findings of the trial court and held that the jurisdiction of the Civil Court was not burred by section 46 of the and that it could go into the question whether or not the matter had been adjudicated upon by the authorities under that Act.
It found that no inquiry, as contemplated under section 7 of the 1950 Act was held and no Notification was issued by the Authorities under that Act, declaring the suit property to be evacuee property.
It further held that Abdul Rashid had no title or interest, whatever, in the house in question after July 31, 1953, when, in accordance with the decree of the Civil Court in partition Suit No. 289 of 1953, Phool Chand had deposited the value of 1/6th share of Abdul Rashid in this property.
The High Court dismissed the Second Appeal preferred by the appellant affirming the concurrent findings of the court below.
It also held that Abdul Rashid was in India much after the repeal of UP ordinance No. 1 of 1949 and consequently there was no question of the property vesting automatically in the Custodian under the aforesaid ordinance.
In the appeal to this court it was contended on behalf of the appellants: (1) in view of the decision in Custodian of Evacuee Property, Punjab & Ors vs Jatran ; and section 46 of the 1950 Act, the Civil Court had no jurisdiction to adjudicate upon the question whether the suit property or any right or interest therein is or is not evacuee property, (2) the sale of the suit property had been effected in favour of the appellant under section 20 of the 1954, Act, after it had been acquired by the Central Government under section 12 of that Act, free from all encumbrance and formed part of the compensation pool, (3) the order of its acquisition passed under section 12, and its sale under section 20 of the 1954 Act had become final and conclusive, the respondents could not be allowed to go behind those orders and question their finality on the ground that the property has never been evacuee property vesting in the Custodian, because section 27 of the 1954 Act bars the jurisdiction of the Civil Court to go into this question Dismissing the appeal, ^ HELD: 1 (i) Section 46 will not bar the jurisdiction of the Civil Court where the Custodian has never declared the property as evacuee property after taking proceedings under section 7 of the 1950 Act.
[219 C] Custodian of Evacuee Property, Punjab & ors.
vs Jafran Begum ; referred to and explained.
(ii) Form a conjoint reading of section 7 & 8 of the 1950 Act it is clear that the making of a declaration after inquiry under section 7 that the property is 'evacuee property ' is a sine qua non for giving the Custodian dominion over the property.
If no proceeding is taken under section 7, there CHD be no vesting of the property in the Custodian.
[216 C] Fazalbhoy vs Official, Trustee of Maharashtra [1979] 2 S.C.R. 699 at p. 712 referred to.
In the instant case Abdul Rashid was throughout residing in India and personally managing the suit property And collecting its rent till 1963.
He migrated or went away from India for good some time in 1963 or thereafter.
Therefore, if the Custodian had not taken any proceedings under section 7 209 of the 1950 Act to declare the suit property as evacuee property before the 7th day of May, 1954, and no such proceedings were pending on May 7, 1954, the property of Abdul Rashid could not be declared evacuee property under the Act, the poor of the Custodian to do so having been terminated by section 7A. [217 B C] (iii) It was for the plaintiff appellant to show by producing relevant notifications or other documentary evidence that the Custodian had taken proceedings and declared the suit property to be evacuee property in Accordance with the provisions of section 7 or that such proceedings had been initiated earlier and were pending on the 7th day of May, 1954.
Despite ample opportunity granted to the plaintiff he did not produce any such documentary evidence in the courts below.
All that he showed was that Rehabilitation Authorities had purporting to act under the 1954 Act sold the suit property to him and issued the sale certificate in his favour on April 1st, 1969.
[217 D] (iv) Clauses (a), (c) and (d) of section 46 postulate that at the time when the question whether or not a property is evacuee property comes for adjudication the power of the Custodian General or the Custodian under this Act of 1950 to determine the question is subsisting.
That is to say, if at the point of time when the question arises, the power of the authorities constituted under this Act to adjudicate that question stands terminated or extinguished by the operation of section 7A of the 1954 Act, none of the clauses (a), (c) and (d) of section 46 will bar the jurisdiction of the Civil Court to determine that question, which had not been decided by the Custodian during the period he had the power to determine it.
[219 P G] (v) Section 28 has no application to the facts of the instant case because no order made by any of the authorities mentioned in that section is being called in question.
Section 46, also, does not come in the way because no proceedings under section 7 of the 1950 Act to declare the suit house ns evacuee property can be taken by the Custodian against Abdul Rashid.
[219 H220 A] (vi) No notification under Sub section (3) of section 7 published in the official Gazette has been placed on the record Nor was it shown that any proceedings initiated under section 7 of the Act to declare it evacuee property were pending on MAY 7, 1954, and the question of saving those proceeding under the Proviso to section 7A does not arise.
[220 Bl In the instant case Qazi Abdul Rashid was throughout resident of India till 1963 and was personally managing the suit house and collecting rent of it from the tenant.
After May 7, 1954, therefore, the Custodian had no jurisdiction under the 1950 Act to declare the suit house as evacuee property.
The jurisdiction of the Courts below to go into this question was thus not barred by anything in sections 28 and 46 of the 1950 Act.
[220 C] 2(i) Section 20 of the 1954 Act confers powers on the managing officer to transfer any property out of the compensation pool by sale or in any other manner indicated in clauses (b) to (e) of that Section.
The necessary prerequisite for sale is that the property must have been declared under section 7 of the 1950 Act to be evacuee property by the Custodian or it must be evacuee property under the deeming provisions of any law which may be applicable to the case of the evacuee.
In other words, only that property could be acquired 210 under section 12 and form part of the compensation pool which satisfies the definition of "evacuee property" even in section 2(c) of the 1954 Act.
If the property was never evacuee property, as defined in section 2(c), it does not legally form part of the compensation pool and, therefore, cannot be disposed of under section 20 or the Rules framed under this statue.
[220 C, 221 H 222 B] (ii) The necessary prerequisite for acquiring property under section 12 is that it must be 'evacuee property ' as defined in section 2(c) of the 1954 Act.
In the absence of this essential prerequisite the Central Government is not competent to acquire, that property under this section for throwing it into the compensation pool.
This prerequisite or condition precedent, was lacking in the instant case.
No notification published in the official Gazette either under sub section (1) or sub section (3) of section 12 appears to have been brought on the record of this case, nor attention drawn to any such notifications.
[221 F G] 3.
Section 27 of the 1954 Act is not ' attracted because the plaintiff, who filed the original suit and is now appellant in this appeal, is not questioning the finality of the order of the sale alleged to have been made by the managing officer.
It is the defendant respondents who are resisting the plaintiff 's claim on the ground that the sale is a nullity.
It could not be made under this Act of 1954 for the reason that it was never declared evacuee property under section 7 of the Act and thus never formed part of the compensation pool.
The words "under this Act" occurring in section 27 are significant.
They show that those orders which are not made by any officer or authority in accordance with the provisions of this Act, but outside the provisions of this Act in excess of jurisdiction, can be called in question in the civil court.
The language of section 27 is not as wide as that of section 46 of the 1950 Act.
[222 G 223 A] 4.
As Qazi Abdul Rashid remained in India continuously upto 1963, no question of automatic vesting under the U.P. Ordinance No. 1 of 1949 could arise.
That ordinance was not applicable to him at all.
[214 H]


judgement:
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 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. 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 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 some other documents of the years 1893 and 1894.
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.
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.
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 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 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.
N.K.A. 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. 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 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, I.L.R XXXIV Bombay, 618; Mohammad Wajeeh Mirza vs Secretary of State for India in Council, A.I.R. 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, A.I.R. , & 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]