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PETITIONER: HARSOOKDAS BALKISSENDAS

       Vs.

RESPONDENT: THE FIRST LAND ACQUISITION COLLECTOR & ORS.

DATE OF JUDGMENT08/04/1975

BENCH: RAY, A.N. (CJ) BENCH: RAY, A.N. (CJ) KRISHNAIYER, V.R.

CITATION:  1975 AIR 1097            1975 SCR   79  1975 SCC  (2) 256

ACT: Land Acquisition Act, s. 49(2)-Scope of.

HEADNOTE: Section  49(2) of the Land Acquisition Act provides that  if in  the  case  of any claim under s. 23(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  the  opinion  that the  claim  is  unreasonable  and excessive,  it may, at 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. A  part of a large area of land belonging to  the  appellant was  sought to be acquired by the State.  The appellant  put forward  a claim on account of damage caused  by  severance, under  s.  23(1)  thirdly.  The claim was  held  to  be  un- reasonable  and excessive, by the Government.  Sanction  for the  acquisition of the entire land of the appellant  having been  approved, a further portion of the land was  acquired. The  appellant contended: (1) that s. 49(2) applies only  to land  with  buildings, that the land acquired was  a  vacant land with no house or buildings; (2) that he made the  claim for compensation under third and fourth clauses of s. 23  of the  Act and therefore s. 49(2) had no application; and  (3) that  the acquisition of. a portion of the land was not  for public purpose as there was no further declaration of public purpose and the acquisition was therefore invalid. Dismissing the appeal, HELD  :(1)  (a)  Land is defined in s. 3(a) of  the  Act  to include  benefits to arise out of land, things  attached  to the  earth or permanently fastened to anything  attached  to the earth.  Therefore, land contemplated in s. 49(2) of  the Act  may be land or land or land including building or  part of a building. [81B-C] (b)  The  contention that if there is vacant land, s.  49(2) of  the Act has no application is not only a  misreading  of the decision of the Court in State of Bihar     v.     Kundan Singh  [1964] 3 S. C. R. 382 but also the relevant  Section. [81 D]. In the instant case the contention of the appellant that  it was vacant land was also contrary to facts.  The material on

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record shows that there were certain structures on the land. [80 H]. (2)  If  a claim under the third clause of s. 23(1)  of  the Act  is  made  the requirement of s. 49(2)  of  the  Act  is satisfied.   Addition of a claim under the fourth clause  of s. 23(1) of the Act makes no difference. [82 B]. (3)  (a)  Sub-sections  (2)  and (3) of s.  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 ss. 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 If  the  public  land.   Sections 4 and 5  of  the  Act  are excluded  because of proposal by owner, in case  of  further acquisition  under  s.  49(1) of, the Act  and  proposal  by Government for further acquisition in a case under s.  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 s. 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(2) of  the  Act  is subsidiary to public purpose.  The acquisition is in aid  of that purpose. [83 A-C]. (b)  Section  49  (2) of the Act does not require  that  the opinion shall be formed after hearing the person  concerned. [83 D]. 80

JUDGMENT: CIVIL APPELLATE JURISDICTION : Civil Appeal No. 558 of 1970 From  the  Judgment and Order dated 26th May,  1965  of  the Calcutta High Court in Appeal from Original Order No. 260 of 1973. L.   M.  Singhvi, O.  C. Mathur, D. N.  Mishra  and  J.  B. Dadachanji for the appellant. Niren De, Attorney General of India, D. N. Mukherjee, G.  S. Chatterjee, and Sukumar Basu for respondents Nos. 1 and 4. Niren  De, Attorney General of India, S. K. Dholakia and  R. C. Bhatia for respondent No. 3. The Judgment of the Court was delivered by RAY, C. J.-This appeal by certificate raises the question as to  whether  section  49(2)  of  the  Land  Acquisition  Act hereinafter  referred to as the Act has any  application  to the acquisition of the land in question. 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 waterlogged during rainy season.  The appellant denies these allegations. Out of the total area the State in 1959 acquired 1 bigha, 13 chattack,  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

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clause "thirdly of sub-section (1) of section 23 of the Act" is unreasonable and excessive. 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  chittacks and 10 sq. feet.  The premises were acquired.  An award  was made. The  principal contention of the appellant is  that  section 49(2)  of  the  Act  has  no  application  in  the  case  of acquisition of vacant land.  The appellant contends that the land  acquired  in the present case was vacant.   The  State contended to the contrary.  The materials on record  support the contention of the State.  The appellant submits that 81 section  49(2)  of  the Act applies  only  where  land  with building is taken.  Section 49(2) of the Act is as follows               "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 and excessive, it  may,               at 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." 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  a building. Counsel  for  the appellant relied on the decision  of  this Court  in  State of Bihar v. Kundan Singh &  Anr.  [1964]  3 S.C.R. 382 and extracted the observation at page 394 of  the Report  that  section 49(2) of the  Act  contemplates  cases where  land  is acquired and it is shown to form part  of  a house.  In short, the contention of the appellant is that if there  is  vacant  land  section 49(2) of  the  Act  has  no application.   This is not only misreading the decision  but also the relevant section. In   Kundan   Singh’s   case  (supra)   the   question   for consideration  was whether the desire of the owner  for  the acquisition of the entire house under section 49 (1) of  the Act should be expressed before the award is made.  In Kundan Singh’s case (supra) the State acquired a plot of land which consisted  of  the main house and an outhouse with  an  open space.  The owner of the property was not satisfied with the award.   The owner contended that other lands and  buildings contiguous  to  the  land and building  acquired  which  all belonged to the owner had not been acquired.  As a result of partial  acquisition the owner alleged loss.  The ruling  of this  Court  is that such plea under section 49 of  the  Act cannot  be considered in an enquiry under section 18 of  the Act.   Section 49(1) of the Act shows that if the owner  has any  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 II of the Act.  If an  objection under section 49(1) of the Act is taken by the owner and the Collector decides to accept the objection then the Collector acquires the whole of the house.  If the Collector does  not accept  the claim the matter is judicially determined  under the second proviso to section 49(1) of the Act.

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Section 49(2) of the Act states that where on account of the severing of the land to be acquired from his other land, the person  interested  prefers a claim under the  third  clause under  section  23(1) of. the Act and the Government  is  of opinion that the claim is unrea- 82 sonable or excessive, the Collector may, at any time  before the award is made, order the acquisition of the land. The appellant submits that the appellant made the claim  for compensation  under the third and fourth clauses of  section 23(1)  of the Act, and, therefore, section 49(2) of the  Act has no application.  In one of the letters of the  appellant dated  25  February, 1960 it is stated that the  area  of  7 bighas,  4 cottahs, 9 chittaks and 10 sq. feet of from  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 Collector’s 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 Collector’s taking  possession of the land by reason of the acquisition including affecting his  other  property,  movable or immovable,  in  any  other manner,  or his earnings.  Therefore, if a claim  under  the third  clause  of  section  23(1) of the  Act  is  made  the requirement  of  section  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. 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. 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 for severance. Counsel  on  behalf  of the  appellant  contended  that  the acquisition  of  the  remaining land was not  for  a  public purpose and was, therefore, invalid.  It was said that there should  have  been  a fresh declaration  of  public  purpose after. the proposed acquisition of the remaining 83 portion of the land.  This contention is unacceptable.  Sub-

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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(2) of the Act  is subsidiary to public purpose.  ’The  acquisition  is for  public purpose.  Tile subsequent acquisition is in  aid of that purpose. Counsel  on  behalf of the appellant submitted that  he  was entitled to be heard before the order was made under section 49(2) of the Act.  This submission is unacceptable.  Section 49(2) of the Act does not require that the opinion shall  be formed after hearing the person concerned. For  these reasons, the appeal fails and is  dismissed.   In view of the fact ,hat the High Court directed each party  to pay  and  bear its own cost, there will be no  order  as  to costs. P.B.R.                                                Appeal dismissed. 84