Judgment

S.C. AGRAWAL, J.:- In the year 1869, the ruler of the former State of Jaipur made grant of land measuring 25 bighas Kham in the City of Jaipur to late Nawab Zainul Abdin Khan alias Nawab Kallan Khan. Some time later, Nawab Kallan Khan acquired some more land measuring 8 bighas Kham and the entire land measuring 33 bighas Kham was knawn as Bagh Nawab Kallan Khan. A makbara to perpetuate the memory of his wife was constructed by Nawab Kallan Khan in the said Bagh and the late Nawab and his three sons were also buried by the side of the said makbara. A mosque was also constructed in the Bagh. The makbara and the mosque cover an area of 1 bigha and 17 biswas. In 1944, proceedings for acquisition of the land comprised in Bagh Nawab Kallan Khan were initiated under the provisions of Jaipur Land Acquisition Act, 1943. In those. proceedings, the Land Acquisition Officer submitted a report dated October 11, 1944 to the Secretary to the Public Works Department of the former State of Jaipur wherein compensation was proposed in respect of certain constructions existing on the land as regards the rest of the land, it was stated that the question of granting land in exchange to Sahibzada Zafar Jang Khan, the grandson of Nawab Kallan Khan, would be considered after the decision of the Matmi case which was pending in the Revenue Department. It appears that nothing further happened in the matter till 1955 when the Urban Improvement Board, Jaipur started proceedings to sell the land by dividing it in small plots., Sahibzada Zafar Jang Khan filed a Writ Petition (D.D. Civil Writ Petition No. 115 of 1955) in the High Court wherein he claimed that he was in possession of the land in dispute and that the State was threatening to disturb his possession. The said writ petition was contested by the State who claimed that the possession over land in dispute had been taken as far, back as in the year 1945 and the land had vested in the State according to law in view of the acquisition proceedings and that the Urban Improvement Board, Jaipur, was justified in taking steps to sell the land. The said writ petition was decided by the High Court by its judgment dated March 11, 1957. The High Court did not go into the disputed question of fact as to whether the possession of the land had been taken over by the State in the year 1945 as alleged and proceeded to deal with the matter on the assumption that the State had taken possession of the land in dispute on 1945. The High Court was of the view that under the provisions of the Jaipur Land Acquisition Act, the land could vest in the State only under Ss. 16 and 17 and that it was not the case of the State that any action under S. 17 was taken in the case and therefore the only section which could be invoked was S. 16 and that under S. 16 mere taking of possession by the State did not vest the land in the State and it was necessary that the said possession must be taken after an award under S.11. The High Court, therefore, considered the question whether there was an award under S.11. After examining the report of the Land Acquisition Officer dated October 11, 1944, the High Court held that the said report could not be treated as an award under S.11 because it showed that no compensation in the shape of cash or in the shape of land to be given in exchange for the land in dispute was fixed and all that the Land Acquisition Officer did in October, 1944 was to postpone making of the award. The High Court, therefore, held that in spite of the proceedings under the Jaipur Land Acquisition Act, 1943, the land could not be said to have been vested in the State under S. 16. While considering the matter of granting of relief to Sahibzada Zafar Jang Khan, the petitioner in the said writ petition, the High Court observed that the remedy of quashing the proceedings and prohibiting the State from depriving him of the possession of the land could not be granted and all that the petitioner could ask was that the postp