P V LAKSHMI AMMAL Vs. STATE OF MADRAS

JUDGEMENT

(1.) The petitioner in this writ petition is the owner of a small extent of land of about 28 cents in Tiruvalyaru which is being acquired under the Land Acquisition Act to serve as a play ground and canoe club for the Srinivasa Rao High School at that place. The petitioner object-ed to the acquisition of this bit of land on the ground inter alia that the land sought to be acquired formed a portion of the backyard of her residential house where the drain, the latrine, the cowshed and outhouse and other amenities were situated. The objection was overruled and the necessary notification under Sectionc 6 Land Acquisition. Act has been published and the Revenue Divisional Officer, Tanjore, has been appointed to perform the functions of the Collector under the Act. The petitioner was served with a notice under Sections 9(1) and 10, Land Acquisition Act. fixing 10-8-1953 for hearing her objections. The petitioner, thereupon filed an application on 1-8-1953 requesting the Government to desist from acquiring the land under Section 48(1) of the Act and prayed for the stay of further proceedings till her petition was disposed of. The ground urged by her in this petition was that the acqulsition of this bit of land forming the backyard of her residential house would spoil the amenities, of her house and that it would seriously prejudice her enjoyment of it. This petition was rejected by the Government whereupon the petitioner filed another petition purporting to be under Section 49(1) of the Act requesting that the Land Acquisition Officer, who is the 2nd respondent herein, should refer to the civil court for enquiry the question as to whether the land proposed to be acquired under the Act does or does not form part of her house. This petition was rejected by the Land Acquisition Officer on the ground that it did not comply with the terms of Section 49(1) of the Act and it is the validity of this order of the Land Acquisition. Officer refusing to refer the dispute to a civil Court that is the subject-matter of this writ petition. The provisions of Section 49, Land Acquisition Act, are in these terms:

(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 Provincial Government is of opinion that the claim is unreasonable or 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.

(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 Provincial Government to the person interested, and shall thereafter proceed to make his award under Section 11." It will be seen from the terms of these provisions that in order to sustain a petition under Section 49(1) not merely must there be an acquisition of a part only of a house but the owner must also express a desire that the whole of such house shall