Judgment Case ID: 1626

Judgment:
Appeal No. 219 of 1962. 384 Appeal from the judgment and decree dated August 31	 1960 of the Patna High Court in Appeal from Original decree No. 7 of 1955. B. Sen	 J. B. Dadachanji	 O. C. Mathur and Ravinder Narain	 for the appellants. B. R. L. Iyengar	 section K. Mehta and K. L. Mehta	 for the respondents. April 25. The Judgment of the Court was delivered by GAJENDRAGADKAR J. 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 section 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 under acquisition. The respondents were not satisfied with this award	 and so	 ' they applied for reference under section 18 385 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 section 23 (3) of the Act. The Deputy 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 huge loss. On reference	 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 386 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 in question. The respondents then preferred an appeal before the High Court of Patna under section 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 section 18 of the Act and a plea like the one raised by the respondents which could be made under section 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 387 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 section 49 to be invoked in the appeal before it. The first point which must be considered in dealing with the appellants ' argument is whether the respondents had made an application to the Land Acquisition Officer under section 49 of the Act as alleged by respondent No. I in his evidence before the District judge. We have already noticed that respondent No. I stated in his evidence that on October 22	 1952 he had put in an application that the other quarters should also be acquired. In other words	 his plea was that the said application had been made invoking the provisions of section 49 of the Act after the date of the notification and before the award was made on November 27	 1952. The judgment of the District judge shows that he did not accept this plea	 and so	 he proceeded to deal with the case on the basis that the respondents were claiming additional compensation either under the third or the fourth clause of section 23 (1) of the Act. If he had held that an application had been made by the respondents under section 49 of the Act before the award was made and they were asking for relief under that provision	 he would	 undoubtedly	 have considered the matter and recorded his conclusion on it. Therefore	 it would not be unreasonable to assume that the District judge did not attach any importance to the statement made by respondent No. I that he had put in an application under section 49	 or it may be that the 388 respondents merely pressed their claim for additional compensation under section 23 before the learned District judge. When the matter was argued before the High Court	 the appellants seriously disputed the allegation of the respondents that an application had been made to the Land Acquisition Officer under section 49. It is true that the statement of respondent No. 1 that he had made such an application was not challenged in cross examination	 but it is remarkable that the said statement does not appear to have been pressed before the District judge and when it was attempted to be pressed before the High Court	 the application alleged to have been made by respondent No. I was not produced before or shown to the High Court at all. In fact	 no such application has been printed in the paper book prepared for this Court in the present appeal. The High Court also does not appear to have made any definite finding that the statement of respondent No. I could be accepted. It has	 however	 held that the claim made by the respondents when they asked for reference under s.18 showed that they were asking for protection under s.49 of the Act and it is on the basis of the said claim contained in para. I (d) of the respondents ' petition under section 18 of the Act that the High Court came to the conclusion that the respondents had relied upon section 49 before the Land Acquisition Officer. We have already referred to the ground taken by the respondents in para I (d) of their petition and have noticed that the claim made under the said ground was under section 23 of the Act and not at all under section 49; and so	 we are not prepared to accept Mr. Iyenger 's argument that the present appeal should be dealt with on the basis that the respondents had made an application to the Land Acquisition Officer under section 49 of the Act before he pronounced his award. By their application for 'reference	 the respondents merely claimed additional compensation under section 23(1) and 389 that is how their claim was considered and decided by the learned District Judge. It is in the light of this	 finding that we have to determine the question as to whether the High Court could have entertained the respondents ' plea under section 49 in the appeal preferred before it by the respondents against the decision of the District Judge in reference proceedings taken before him under section 18 of the Act. In determining the question about the scope of the enquiry under section 18	 it is necessary to consider the relevant provisions of the Act. Section 4 of the Act deals with the publication of a preliminary notification in regard to the acquisition proceedings proposed to be taken. Section 5 A deals with the hearing of objections. Section 6 provides for the declaration that a particular land is required for a public purpose. Section 9 requires notice to be given to the persons interested in the said property. Section 11 prescribes the manner of the enquiry and provides for the making of the award by the Collector. Section 12 lays down that the award	 when made	 shall be filed in the Collector 's office and shall be final	 as therein prescribed ' Section 16 empowers the Collector to take possession of the property acquired	 ' and section 18 deals with reference to Court. In dealing with the claim for compensation made by the owner of the property	 the Court has to consider the matters specified in section 23. The third clause of section 23 (1) provides that in determining the amount of compensation	 the Court shall take into account the damage (if any)	 sustained by the person interested	 at the time of the Collector 's taking possession of the land 	 by reason of severing such land from his other land and the fourth clause requires the Court to take into account the damage (if any)	 sustained by the person interested	 at the time of the Collector 's taking possession of the land	 by reason of the acquisition injuriously affecting his other property	 movable or immovable	 in any other manner	 or his earnings. 390 Section 18 (1) provides that any person interested who has not accepted the award may	 by written application to the Collector	require that the matter be referred by the Collector or the determination of the Court	 whether his objection be to the measurement of the land	 the amount of the compensation	 the persons to whom it is payable	 or the apportionment of the compensation among the persons interested. ' It is thus clear that the scope of the enquiry under section 18 (1) is specifically indicated by the section itself. The objections which the Court can consider on a reference made to it under section 18 may be either in respect of the measurement of the land	 the amount of compensation	 the persons to whom it is payable	 and the apportionment of the compensation among different persons. In dealing with the ' question about the amount of Compensation	 the Court may have to take into account the matters specified in s.23. As was observed by the Privy Council in Pramatha Nath Mullick vs Secretary of State for India (1)	 the section clearly specifies four different grounds of objection which can be the subject matter of an enquiry in reference proceedings. Therefore	 it is very difficult to accede to Mr. Iyengers ' argument that in dealing with the reference proceedings under section 18 (1)	 the Court can also consider the pleas raised by the owner of the property under section 49 of the Act. It does appear that the owner of property under acquisition may claim additional compensation on the ground that the portion of the property acquired so materially affects the value or the utility of his other property not acquired as to justify a claim for additional compensation under section 23	 and if such a claim is made	 it would legitimately form the subject matter of an enquiry in a reference under section 18 (1)	 but if the owner of the property wants to claim 'that the whole of his property should be acquired	 and in that connection relies on the provisions of section 49	 that cannot be introduced in an enquiry under section 18 (1) (1929) L. R. 57 I. A. 100. 391 such a claim must form the subject matter of different proceedings taken by the owner under section 49 itself. That takes us to section 49. Section 49 reads thus " (1) The Provisions of this Act shall not be put in force for the purpose of acquiring a part only of any house	 manufactory or other building	 if the owner desires that the whole of such house	 manufactory or building shall be so acquired Provided that the owner may	 at any time before the Collector has made his award under section 1 1	 by notice in writing	 withdraw or modify his expressed desire that the whole of such house	 manufactory or building shall be so acquired : Provided also that	 if any question shall arise as to whether any land proposed to be taken under this Act does or does not form part of a house	 manufactory or building within the meaning of this section the Collector shall refer the determination of such question to the Court and shall not take possession of such land until after the question has been determined. In deciding on such a reference the Court shall have regard to the question whether the land proposed to be taken is reasonably required for the full and unimpaired use of the house	 manufactory or building. (2) If	 in the case of any claim under section 23	 sub section (1)	 thirdly	 by a person interested	 on account of the severing of the land to be acquired from his other land	 the (appropriate Government) is of opinion that the claim is unreasonable or excessive	 it may	 at 392 any time before the Collector has made his award	 order the acquisition of the whole of the land of which the land first sought to be acquired forms a part. (3) In the case last hereinbefore provided for	 no fresh declaration or other proceedings under sections 6 to 10	 both inclusive	 shall be necessary ; but the Collector shall without delay furnish a copy of the order of the (appropriate Government) to the person inter ested	 and shall thereafter proceed to make his award under section 11. The provisions of section 49 (1) prescribe	 inter alia	 a definite prohibition against putting in force any of the provisions of the Act for the purpose of acquiring a part only of any house	 if the owner desires that the whole of such house shall be acquired. This prohibition unambiguously indicates that if the owner expresses his desire that the whole of the house should be acquired	 Do action can be taken in respect of a part of the house under any provision of the Act	 and this suggests that where a part of the house is proposed to be acquired and a notification is issued in that behalf	 the owner must make up his mind as to whether he wants to allow the acquisition of a part of his house or not. If he wants to allow the partial acquisition	 proceedings would be taken under the relevant provisions of the Act and an award directing the payment of adequate compensation would be made and would be followed by the taking of possession of the property acquired. If	 on the other hand	 the owner desires that the whole of the house should be acquired	 he should indicate his desire to the Land Acquisition officer and all further proceedings under the relevant provisions of the Act must stop. This provision thus seems to suggest that if an objection is intended to be raised to the acquisition of a part of the house	 it must be 393 made before an award is made under section 11. In fact	 it should be made soon after the initial notification is published under section 4 ; otherwise	 if the proceedings under the relevant provisions of the Act are allowed to be taken and an award is made	 it would create unnecessary confusion and complications if the owner at that stage indicates that he objects to the acquisition of a part of his house ; at that stage	 it would no doubt be open to him to claim adequate compensation in the light of the material provisions of section 23 of the Act	 but that is another matter. The first proviso to section 49 (1) also leads to the same conclusion. If the owner has made his objection to the acquisition of a part of his house	 it is open to him to withdraw or modify his objection before an award is made under section 11 ; and if he withdraws 'his objection	 further proceedings will follow and if he modifies his objection	 steps will have to be taken as indicated in the other provisions of section 49. This proviso	 therefore	 suggests that the objection of the owner to acquisition of a part of his house has to be considered and dealt with before an award is made under section 11. It would be noticed that if an objection is made by the owner under section 49 (1)	 the Collector may decide to accept the objection and accede to the desire of the owner to acquire the whole of the house. In that case	 further proceedings will be taken on the basis that the whole of the house is being acquired. In some cases	 the Collector may decide to withdraw acquisition proceedings altogether	 because it may be thought not worthwhile to acquire the whole of the house ; in that case again nothing further remains to be done and the notification issued has merely to be withdrawn or cancelled. But cases may arise where the Collector may not accept the claim of the owner that what is being acquired is a part of the house ; in that case	 the matter in dispute has to be 394 judicially determined	 and that is provided for by the second proviso to section 49 (1). Under this proviso	 the Collector is under an obligation to refer the matter to the Court and he shall not take possession of the land under acquisition until the question is determined by the Court. In dealing with this matter	 the Court has to have regard to the question as to whether the land proposed to be taken is reasonably required for the full and unimpaired use of the house. Sub section (2) of section 49 seems to contemplate that where land is acquired and it is shown to form part of a house	 it would be open to award to the owner of the house additional compensation under the third clause of section 23	 and I so	 this sub section deals with cases where the claim made by the owner of the house under the third clause of section 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 section 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 section 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 section 18 ; if	 on the other hand	 he claims the other alternative remedy provided by section 49 (1)	 that must form the subject matter of another proceeding which has to be dealt with under section 49 itself. It is true that in cases of dispute	 this matter also goes to the same Court for its decision on a 395 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 section 49 which can be properly tried by the Court on a reference made to it by the Collector under the second proviso to section 49 (1)	 cannot be mixed up with a claim which can be made in reference proceedings sent to the Court under section 18 by the Collector. 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 section 49 (2). Thus	 it would be seen that the scheme of section 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 section 49 has to be followed. This procedure is distinct and separate from the procedure which has to be followed in making a reference under section 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 section 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 section 49 (1). It now remains to consider two relevant decisions which were cited before us. In the Secretary of State for India in Council vs Narayanaswamy Chettier (1)	 the Madras High Court appears to have taken the view that there is nothing in section 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 (1) Mad. 391 396 to section 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 section 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 section 49 (1). In our opinion	 however	 the scheme of section 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 section 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 section 49 (1) and the reference is then required to be made under the second proviso to section 49 (1). Logically	 if an enquiry has to be made as contemplated by section 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 section 49 (1). The said prohibition coupled with the first proviso to section 49 (1) leads to the conclusion that the owner cannot take recourse to section 49 after an award is made under section 1 1 of the Act. In our opinion	 therefore	 the High Court did not correctly interpret the effect of section 49 (1) when it held that the said section did not require the claimant to put forward his claim before the award was made. 397 In Krishna Das Roy vs 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 section 49 (1)	 he has to make that application some time before the award is actually made. The result is	 the appeal is allowed	 the order passed by the High Court is set aside and that of the District judge restored. There will be no order as to costs. Appeal allowed.

Summary:
The appellant acquired a plot of land on which the respondent 's property stands	 consisting of the main house and an outhouse with an open space in front of them. The land acquired covered a space 50 ft. in width for the electric wire to run over and this included a portion of the open space as also the outhouse. The Land Acquisition Officer fixed a compensation of Rs. 4	451/5/6. Not being satisfied with this award the respondents appealed under section 18 of the Land Acquisition Act	 1894. One of the grounds taken in the 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	 they had to suffer a huge loss	 the electric rope line passed close to the rest of the property and so it could not be used as it might be dangerous for human habitation. On this basis compensation of about Rs. 21	765/8/which had been spent in the constructions of the principal house was claimed Before the District Judge	 on reference	 Respondent No. I gave evidence that he had made I an application before the award was given for the payment of the higher compensation on the above stated ground. The District judge considered this ground and held that since only a narrow strip of land was left in front of the main building its utility was diminished and awarded an additional compensation of Rs. 1	000/ . The respondents preferred an appeal to the High Court in which they prayed for a declaration that the Land Acquisition Officer should acquire the main building along with the other properties acquired. The present appellant contended that the respondents should not be allowed to raise this contention 383 because this plea could have been raised by them only under section 49 of the Act and the plea was foreign to the scope of the reference out of which the appeal arose. It was also contended that his plea was not taken before the Land Acquisition Officer. The High Court rejected these contentions of the Appellants and granted the declaration as prayed for by the respondents. The present appeal is by way of a certificate granted by the High Court. Substantially the same contentions as were raised before the High Court were raised in this appeal before this Court. Held that the claim was made by the respondents under section 23 of the Act and not under section 49 and what they have in fact done is to claim additional compensation under section 23 (1). It is clear that the scope of the enquiry under section 18 (1) is specifically indicated by the section itself and the grounds on which objection can be taken. The Court cannot consider the pleas raised by the owner of the property under section 49 in an enquiry under section 18 (1). The scheme of section 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 section 49 has to be followed. This procedure is distinct and separate from the procedure which has to be followed in making a reference under section 18. In the present case the respondents have not taken any steps to express their desire that the whole of their house should be acquired and it was not open to the High Court to allow them to raise this point in appeal which Arose out of an order passed by the District Judge under section 18. Case law reviewed. Pramatha Nath Mullick vs Secretary of State for India in Council	 (1929) L. R. 57 I. A. 100. The Secretary of State for India in Council V. R. Narayanaswami Chettiar	 Mad. 391	 distinguished. Krishna Das Roy vs The Land Acquisition Collector of Pabna