LAL BAHADUR Vs. STATE OF U P

JUDGEMENT

(1.) THIS special appeal is directed against the order of learned Single Judge dated 31st August. 1971, in Writ Petition No. 1286 of 1969. The writ petition related to a matter arising out of Land Acquisition Act, 1894, (hereinafter referred to as the Act). A notification under Section 4 dated 26th of September, 1946, was published in the Gazette of 12th October. 1946, of which Annexure 1 to the writ petition is a copy. Land acquired therein was denoted by names of villages. Approximate area in acres was also noted the total area to be acquired being 4977 acres. In that very notification it was mentioned that the Governor being of opinion that provisions of Section 17, sub-sees. (1) and (2) were applicable, a direction was made under sub-sec. (4) of the aforesaid section that provisions of S. 5-A of the Act would not apply. Notification under S. 6 of the Act was issued by the Government on 18-2-1959. In that notification land acquired was limited to 200 acres relating to village Islam Bari and 558 acres relating to village Sheikhapur. Writ Petition No. 98 of 1961 was filed by the petitioners challenging acquisition of the land relating to village Sheikhapur. The writ petition was decided by B. N. Nigam, J., in which he repelled all the points except one and the exception related to question of applicability of sub-section (4) of Section 17. Nigam, J., held that sub-section (4) of Section 17 did not apply to plots Nos. 553 and 554 belonging to the petitioners. Consequently, he permitted petitioners to file an objection in respect of those two plots under Section 5-A within 30 days of the order of which Annexure 3 to the writ petition is a copy. Thereafter petitioner filed objections on that account. The objections were considered and a fresh notice under Section 6 of the Act was issued of which Annexure 4 to the writ petition is a copy which covered plots Nos. 553 (area 52 acre) and 554 (area 13 acre) of village Sheikhapur. Thereafter notices under Section 9, subsection (3) of the Act were issued to the petitioners in respect of these two plots as well as plots Nos. 552 and 539. This gave rise to the petition in question. Amongst other grounds one of the grounds taken by the petitioners was that they made an application on 27th February, 1969 to the Land Acquisition Officer under Section 49 of the Act for acquisition of whole of the property but the Land Acquisition Officer failed to exercise his jurisdiction by not referring the matter to the Civil Court for decision. Annexure 9 to the writ petition was true copy of the order passed by the Land Acquisition Officer dated 10th September, 1969. The learned Single Judge dismissed the writ petition on all the grounds raised by the petitioners including the ground noted above holding that the Land Acquisition Officer had not refused to refer the matter to the Court under Section. 49 of the Act, but had reserved the matter for consideration at the time of making the award. Learned Single Judge observed that if the Land Acquisition Officer thought that the plots did not form part of house, manufactory or building then he would refer the matter to the Court, but if he thought that these plots needed acquisition, he would acquire the same. If the Land Acquisition Officer did not adopt either of these courses, the petitioners would then have their remedy in the Civil Court and that at present petitioners have no ground to question the relevant order of the Land Acquisition Officer which was not final. Sri Raj Kumar Srivastaya. counsel for the appellants argued this appeal only on the point noted above. We have heard Sri Raj Kumar Srivastava and Sri K. K. Narain, counsel for the respondents 1 to 3. With respects to the learned Single Judge, we are of this opinion that the view taken by him regarding interpretation of Section 49 of the Act is not correct.

(2.) SECTION 49 of the Act runs 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 :

(3.) WE would, therefore, allow this appeal and quash the order of the Land Acquisition Officer dated 10- 9-1969 of which Annexure 9 is a copy with the direction that he should decide the matter contained in the application of the petitioners dated 27-2-1969 of which Annexure 8 is a copy in the light of what we have discussed above. There would be no order as to costs. Appeal allowed.