State of Bihar & ANR Vs. Kundan
Singh & ANR  INSC 118 (25 April 1963)
25/04/1963 GAJENDRAGADKAR, P.B.
GUPTA, K.C. DAS
CITATION: 1964 AIR 350 1964 SCR (3) 382
CITATOR INFO :
D 1975 SC1097 (7,8)
Land Acquisition-Part of the property
acquired-Land Acquisition Officer fixes compensation by award-ReferenceRespondent
raises objection-No application filed before award-Whether maintainable-scope
of reference-Land Acquisition Act, 1894 (No. 1 of 1894), SS. 18, 23, 49.
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 S.
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 s. 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 s. 23 of the Act and not under s. 49 and what they have in
fact done is to claim additional compensation under s. 23 (1).
It is clear that the scope of the enquiry
under s. 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 s. 49 in an enquiry under s. 18 (1).
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. 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 s. 18.
Case law reviewed.
Pramatha Nath Mullick v. 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, (1931) I.L. R. 55 Mad. 391,
Krishna Das Roy v. The Land Acquisition
Collector of Pabna, (1911) 16 C. W. N. 327.
CIVIL APPELLATE JURISDICTION: Civil 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
B. Sen, J. B. Dadachanji, O. C. Mathur and
Ravinder Narain, for the appellants.
B. R. L. Iyengar, S. K. Mehta and K. L.
Mehta, for the respondents.
1963. 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 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 under acquisition.
The respondents were not satisfied with this
award, and so,' they applied for reference under s. 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 s. 23 (3) of the
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 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 take over 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 s. 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 s. 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 s. 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 s. 23 (1) of the
Act. If he had held that an application had been made by the respondents under
s. 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 s. 49, or it
may be that the 388 respondents merely pressed their claim for additional
compensation under s. 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 s. 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 paperbook 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 s.
18 of the Act that the High Court came to the conclusion that the
respondents-had relied upon s. 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 s. 23 of
the Act and not at all under s. 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 s. 49 of the Act before he pronounced his award. By their application for
'reference, the respondents merely claimed additional compensation under s.
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 s. 49 in the appeal preferred before it by the
respondents against the decision of the District Judge in reference proceedings
taken before him under s. 18 of the Act.
In determining the question about the scope
of the enquiry under s. 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 s. 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 s. 23. The third clause of S. 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 s. 18 (1) is specifically indicated
by the section itself. The objections which the Court can consider on a
reference made to it under s. 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 v. 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 s.
18 (1), the Court can also consider the pleas raised by the owner of the
property under s. 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 s. 23, and if such a claim is made, it would legitimately
form the subject matter of an enquiry in a reference under s. 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 s. 49, that
cannot be introduced in an enquiry under section 18 (1) (1929) L. R. 57 I. A.
391 such a claim must form the subject-matter
of different proceedings taken by the owner under s. 49 itself.
That takes us to s. 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
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
(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
(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 interested, and
shall thereafter proceed to make his award under section 11.
The provisions of s. 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 s. 11. In fact, it should be made soon after the initial
notification is published under s. 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 s. 23 of the Act, but that is another
The first proviso to s. 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 s. 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 s. 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 s.
It would be noticed that if an objection is
made by the owner under s. 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 s. 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
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-s. (2) of s. 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 s. 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 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 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 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.
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).
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).
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 (1), 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 (1) (1931) I.
L. R. 55 Mad. 391 396 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
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.
397 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.
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.