Case: Harsookdas Balkissendas Vs. The First Land Acquisition Collector &amp; Ors

2. The premises in question are 2 Gariahat Road now known as 2 Raja Subodh Mullick Road, Calcutta. The total area is approximately 23 bighas. The appellant alleges that there are no houses or buildings, the Land Acquisition Collector found certain structures occupied by certain persons and other structures and a compound wall and the major portion of the land to be vacant. There is a big tank covering over 3 bighas of the land. The appellant alleges that the land is highly developed and is ideal for building site. The Land Acquisition Collector found the major portion of the land undeveloped and below road level and to become water-logged during rainy season. The appellant denies these allegations.3. Out of the total area the State in 1959 acquired 1 bigha, 13 chattaks, 43 sq. feet for the State Transport. The appellant claimed Rs. 3,50,000 inter alia for severance of the land acquired. In the month of September, 1962 the Government communicated to the appellant that the Government agreed that the claim put forward by the appellant under the clause "thirdly of sub-section (1) of Section 23 of the Act " is unreasonable and excessive.4. The sanction of the Governor was therefor accorded to the acquisition of the entire premises 2, Gariahat Road, Calcutta under Section 49 (2) of the Act. Between the months of February and September, 1960, notices were issued to acquire a further area of 7 bighas, 4 cottahs 9 chattaks and 10 sq. feet. The premises were acquired. An award was made.

Court's reasoning:
6. Land is defined in Section 3 (a) of the Act to include benefits to arise out of land and things attached to the earth or permanently fastened to anything attached to the earth. Therefore, land contemplated in Section 49 (2) of the Act may be land or land including building or part of ais not only misreading the decision but also the relevantone of the letters of the appellant dated 25th February, l960, it is stated that the area of 7 bighas, 4 cottahs, 9 chittaks and 10 sq. feet of front land has been acquired for the purpose of over-bridge at Gariahat Road level crossing including the entire frontage of the said premises as a result of which the remaining portion of the land measuring about 16 bighas of land will be land locked causing heavy damages, severance and injurious affectation. In the writ petition the appellant claimed damages only in respect of severance. Section 23 (1) clause three of the Act speaks of damage sustained by the person interested at the time of the Collectors taking possession of the land by reason of severance of such land from the other land of the owner. Clause four of Section 23 (1) of the Act speaks of claim for damage sustained by the person interested at the time of the Collectors taking possession of the land by reason of the acquisition including (damage) affecting his other property, moveable or immovable, in any other manner, or his earnings. Therefore, if a claim under the third clause of S. 23 (1) of the Act is made the requirement of Sec. 49 (2) of the Act is satisfied, Addition of a claim under the fourth clause of Section 23 (1) of the Act makes no difference.11. In the present case, the land was not completely vacant. Even if there is vacant land Section 49 (2) of the Act will be attracted by reason of definition of land. To accede to the contention on behalf of the appellant that Section 49 (2) speaks only of acquisition of land along with a building and not to the case of acquisition of vacant land is to rob the meaning of land under Section 49 (2) of the Act and the content of Section 49 (2) of the Act. Section 49 (2) of the Act applies to cases of acquisition of vacant land along with structures.12. The object of Section 49 (1) of the Act is to give to the owner the option whether he would like part to be acquired. The Government cannot take the other part under Section 49 (1) of the Act unless the owner says so. Section 49 (2) of the Act has nothing to do with Section 49 (1) of the Act. Section 49 (2) of the Act gives the option to the Government only where the claim under the third clause of Section 23 (1) of the Act is excessive. Reference to the third clause of Section 23 (1) of the Act makes it clear that the claim under the third clause of Section 23 (1) is for severance. The Government in such a case of acquisition of the remaining portion of the land under Section 49 (2) of the Act saves the public exchequer money which otherwise will be the subject-matter of a claim forcontention is unacceptable. Sub-sections (2) and (3) of Section 49 of the Act indicate that the acquisition for public purpose need not be stated. Section 49 (3) of the Act specifically provides that no fresh declaration under Sections 6 to 10 of the Act shall be necessary. Section 49 (2) of the Act implies public purpose inasmuch as the compensation for acquisition is payable out of the public fund. Sections 4 and 5 of the Act are excluded because of proposal by owner in case of further acquisition under Section 49 (1) of the Act and proposal by Government for further acquisition in a case under Section 49 (2) of the Act.All that is necessary is that in one case the owner of the land and in the other the Government must act under Sections 49 (1) and 49 (2) of the Act respectively before the award is made. The public purpose is to prevent people from making exaggerated claims. Section 49 (12) of the Act is subsidiary to public purpose. The acquisition is for public purpose. The subsequent acquisition is in aid of thatsubmission is unacceptable. Section 49 (2) of the Act does not require that the opinion shall be formed after hearing the person concerned.