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

This appeal arises out of proceedings under the Land Acquisition Act, 1894 (No. 1 of 1894) (hereinafter called the Act). The respondents owned an area of 0.12 acre of land in village Bermo No. 18 in the district of Hazaribagh. This land was required for the construction of Aerial Rope-way for Bokaro Thermal Power Plant, and so, in order to acquire the said land, a declaration under s. 4 of the Act was made on August 9, 1952. The property of the respondents which stands on this plot consists of two buildings, one is the main structure and the other is made up of out houses together with an open space of land in front of these structures. The notification showed that the Government thought it necessary, to acquire a space of 50 fit in width for the electric wire to run over and this included a portion of open space as also the out houses of the respondents. Under the proceedings taken under the relevant provisions of the Act, the Land Acquisition Officer fixed the compensation to be paid to the respondents at Rs. 4, 4511516; according to him, the said amount represented a fair and reasonable compensation for the land together with the out houses underrespondents were not satisfied with this award, and so,  they applied for reference under s. 18 of the Act. One of the grounds taken by the respondents in para I (d) of their petition for reference was that the other lands and buildings contiguous to the land and building acquired which belonged to them had not been acquired, and in consequence, they had to suffer a huge loss; the rope-line passes close to the rest of the property, and so, it could not be used for fear of its being dangerous for human habitation. On this basis, the respondents alleged that they were entitled to recover as compensation amount Rs. 21, 765/8/- which they had spent on the construction of the principal building. Besides, they urged that the monthly rent of Rs. 160/- which they were receiving from the tenants in respect of the said principal building would also be lost and they were entitled to adequate compensation on that account. In other words, one of the grounds raised by the respondents in their petition was referrable to s. 23 (3) of theDeputy Commissioner of Hazaribagh then proceeded to make the reference as claimed by the respondents. In his letter of reference, he stated that the respondents were claiming additional compensation on the ground that the other lands and buildings contiguous to the land and building acquired which they owned had not been acquired and thereby they had to suffer a hugereference, the District judge of Hazaribagh heard the matter. It appears that before the District judge, Kundan Singh, respondent No. 1, gave evidence and stated that on October 22, 1952, he had put in an application that the other quarters belonging to him which had not been acquired should also be acquired, because the said quarters were contiguous to the land acquired and had become useless to the respondents. The learned District judge considered the point raised by the respondents and held that since only a narrow strip of land had been left in front of the larger building, it had affected the utility of the said building and the other unacquired land of the respondents, and so, he directed that in addition to the amount of Rs. 4 451/5/6 which had been determined as the amount of compensation by the Land Acquisition Officer, Rs. 1000/- should be paid to the respondents. In his opinion, the amounts determined by the Acquisition Officer for the property actually acquired was quite appropriate and all that was needed to be done was to award an additional amount of Rs. 1, 000/- on the ground that the unacquired property was adversely affected by the acquisition inrespondents then preferred an appeal before the High Court of Patna under s. 54 of the Act. In their appeal, the only ground which they urged was that the rope-way having completely spoiled the main building, the Land Acquisition Officer could not acquire the out houses without acquiring the main building. Accordingly, they claimed a declaration that the Land Acquisition Officer should acquire the main building along with the other properties under acqiuisition.When this plea was raised before the High Court, the appellants, the State of Bihar and the Deputy Commissioner, Hazaribagh, contended that it was not open to the respondents to claim a declaration for the acquisition of other properties in their appeal, because the said appeal arose out of a reference under s. 18 of the Act and a plea like the one raised by the respondents which could be made under s. 49 of the Act, was foreign to the present enquiry. It was also contended that this point had not been taken by the respondents either before the Land Acquisition Officer or before the District judge. These arguments were rejected by the High Court and a direction has been issued by the High Court calling upon the Land Acquisition Officer to takeover the remaining area and the building and assess the compensation thereon in due course according to law. The High Court has ordered that when the said assessment is thus determined, the additional compensation of Rs. 1, 000/which has been allowed by the District judge should be deducted and the balance paid to the respondents. It is against this order that the appellants have come to this Court with a certificate issued by the High Court; and the principal question which has been raised before us by Mr. Sen on behalf of the appellants is that the High Court was in error is allowing s. 49 to be invoked in the appeal before it.

Reasoning: 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.