Case: State Of Bihar And Another Vs. Kundan Singh And Another

the house under the third clause of s. 23 is excessive or unreasonable, and provides that the appropriate Government may decide to acquire the whole of the land of which the land first sought to be acquired forms a part rather than agree to pay an unreasonable or excessive amount of compensation as claimed by the owner. This provision also emphasises the fact that where land is acquired and it results in the acquisition of a part of the house connected with the land, the owner can make a claim for additional compensation under s. 23, or he may require, before the acquisition has taken place, that the whole of the house should be acquired. These are two alternative remedies available to the owner ; if he wants to avail himself of the first remedy under s. 23, he may make a claim for additional compensation in that behalf and such a claim would form the subject-matter of an enquiry under s. 18 ; if, on the other hand, he claims the other alternative remedy provided by s. 49 (1), that must form the subject-matter of another proceeding which has to be dealt with under s. 49 itself. It is true that in cases of dispute, this matter also goes to the same Court for its decision on a reference by the Collector; but though the Court is the same the proceedings taken are different and separate and must be adopted as such. A claim under s. 49 which can be properly tried by the Court on a reference made to it by the Collector under the second proviso to s. 49 (1), cannot be mixed up with a claim which can be made in reference proceedings sent to the Court under s. 18 by the Collector.15. Section 49 (3) merely dispenses with the necessity of issuing a further fresh declaration or adopting other proceedings under sections 6 to 10 in regard to cases falling under s. 49 (2).16. Thus, it would be seen that the scheme of s. 49 is that the owner has to express his desire that the whole of his house should be acquired before the award is made, and once such a desire is expressed, the procedure prescribed by s. 49 has to be followed. This procedure is distinct and separate from the procedure which has to be followed in making a reference under s. 18 of the Act. In the present case, the respondents have taken no steps to express their desire that the whole of their house should be acquired, and so, it was not open to the High Court to allow them to raise this point in appeal which arose from the order passed by the District judge on a reference under s. 18. That being our view, we do not think necessary to consider the respondents contention that what is acquired in the present proceedings attracts the provisions of s. 49 (1).17. It now remains to consider two relevant decisions which were cited before us. In the Secretary of State for India in Council v. Narayanaswamy Chettier ((1931) I. L. R. 55 Mad. 391), the Madras High Court appears to have taken the view that there is nothing in s. 49 requiring the claimant to put forward his particular claim, viz., that the whole of his house should be acquired, at any particular stage of the proceedings. Referring to s. 49 (1), Ramesam off. C. J., observed that the said clause cannot imply that the claims covered by it should be made before the Collector makes his award. Cornish J., who delivered a concurrent judgment agreed with this view. It appears that in coming to this conclusion, both the learned judges referred to the special circumstances under which the claimant made his claim under s. 49 on September, 29, that is to say, after the award.. and those special circumstances clearly showed that the claimant was not to blame for the delay made by him in expressing his desire under s. 49 (1).In our opinion, however, the scheme of s. 49 is clear. Section 49 (1) has imposed a ban on taking any further action under any of the provisions of the Act where the owner expresses a desire that the whole of his house should be acquired, and that clearly indicates that after the relevant notifications are issued under sections 4 and 6, if it appears to the owner of the land under acquisition that a part of his house is being acquired, he has to express his desire before an award is made under s. 11 ; otherwise if the owner allows. proceedings to be taken under the provisions of the Act and an award follows, it would lead to unnecessary complications if the owner is allowed to express his desire under s. 49 (1) and the reference is then required to be made under the second proviso to s. 49 (1). Logically, if an enquiry has to be made as contemplated by s. 49, it must precede any further action under the other provisions of the Act, and that is the main basis of the mandatory prohibition prescribed by s. 49 (1). The said prohibition coupled with the first proviso to s. 49 (1) leads to the conclusion that the owner cannot take recourse to s. 49 after an award is made under s. 1 1 of the Act. In our opinion, therefore, the High Court did not correctly interpret the effect of s. 49 (1) when it held that the said section did not require the claimant to put forward his claim before the award was made.18. In Krishna Das Roy v. The Land Acquisition Collector of Pabna (1), the Calcutta High Court, on the other hand, seems to have taken the view and we think, rightly, that if the owner wants to make an application expressing his desire under s. 49 (1), he has to make that application some time before the award is actually made.19.

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

Explanation:
1[ds]Thus, it would be seen that the scheme of s. 49 is that the owner has to express his desire that the whole of his house should be acquired before the award is made, and once such a desire is expressed, the procedure prescribed by s. 49 has to be followed. This procedure is distinct and separate from the procedure which has to be followed in making a reference under s. 18 of the Act. In the present case, the respondents have taken no steps to express their desire that the whole of their house should be acquired, and so, it was not open to the High Court to allow them to raise this point in appeal which arose from the order passed by the District judge on a reference under s. 18. That being our view, we do not think necessary to consider the respondents contention that what is acquired in the present proceedings attracts the provisions of s. 49now remains to consider two relevant decisions which were cited before us. In the Secretary of State for India in Council v. Narayanaswamy Chettier ((1931) I. L. R. 55 Mad. 391), the Madras High Court appears to have taken the view that there is nothing in s. 49 requiring the claimant to put forward his particular claim, viz., that the whole of his house should be acquired, at any particular stage of the proceedings. Referring to s. 49 (1), Ramesam off. C. J., observed that the said clause cannot imply that the claims covered by it should be made before the Collector makes his award. Cornish J., who delivered a concurrent judgment agreed with this view. It appears that in coming to this conclusion, both the learned judges referred to the special circumstances under which the claimant made his claim under s. 49 on September, 29, that is to say, after the award.. and those special circumstances clearly showed that the claimant was not to blame for the delay made by him in expressing his desire under s. 49 (1).In our opinion, however, the scheme of s. 49 is clear. Section 49 (1) has imposed a ban on taking any further action under any of the provisions of the Act where the owner expresses a desire that the whole of his house should be acquired, and that clearly indicates that after the relevant notifications are issued under sections 4 and 6, if it appears to the owner of the land under acquisition that a part of his house is being acquired, he has to express his desire before an award is made under s. 11 ; otherwise if the owner allows. proceedings to be taken under the provisions of the Act and an award follows, it would lead to unnecessary complications if the owner is allowed to express his desire under s. 49 (1) and the reference is then required to be made under the second proviso to s. 49 (1). Logically, if an enquiry has to be made as contemplated by s. 49, it must precede any further action under the other provisions of the Act, and that is the main basis of the mandatory prohibition prescribed by s. 49 (1). The said prohibition coupled with the first proviso to s. 49 (1) leads to the conclusion that the owner cannot take recourse to s. 49 after an award is made under s. 1 1 of the Act. In our opinion, therefore, the High Court did not correctly interpret the effect of s. 49 (1) when it held that the said section did not require the claimant to put forward his claim before the award wasKrishna Das Roy v. The Land Acquisition Collector of Pabna (1), the Calcutta High Court, on the other hand, seems to have taken the view and we think, rightly, that if the owner wants to make an application expressing his desire under s. 49 (1), he has to make that application some time before the award is actually made.