# ' ' .·":,.< _HARSOOKDAS BALKISSENDAS v. THE FIRST LAND ACQUISITION COLLECTOR & ORS

- **Citation:** [1975] Supp. 1 S.C.R. 79
- **Court:** Supreme Court of India
- **Decided:** 1975-04-08
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/harsookdas-balkissendas-v-the-first-land-acquisition-collector-ors-6545
- **Pages:** 5

## Headnote

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.·":,.< _HARSOOKDAS BALKISSENDAS
v.
THE FIRST LAND ACQUISITION COLLECTOR & ORS.
April 8, 1975
lA. N. RAY, C. J. AND V. R. KRISHNA IYER J.)
Land Acquisition Act, s. 49(2)-Scope of.
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 \Vhich the land first sought to be acquired forms a part.
A part cf 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 unreasonable 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 v;.·as acquired. The appellant contended: (1) that s. 49(2) applies only to
land with buildings, that the landi acquired was a vacant ]and with no house or
buildings; (2) that he made the claim for compensation under third and founb.
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
v;as no further declaration of public purpose and the acquisition Was therefore
invalid.
Dismissing the appeal,
HELD :(!) (a) Land is defined ins. 3(a) of the Act to include benefits to
ari'le 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-CJ
(b) The contention that if there is vacant land, s. 49(2) of the Act ha.<i no
application is not only a misreading of the decision of the Court in State of Bihar
v. Kundan Singh [1964J 3 S. C. R. 382 but also the relevant Section. [81 Dj.
In the instant case the contention of the appellant that it was vacant land
was also contrary to facts. The material on record shows that there were certain
structures on the land, ,[80 H].
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(2) If a claim under the third clause of s. 23(J) 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 BJ.
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(3) (a) Sub·scctions (2) and (3) of s. 49 of the Act indicate that the acquisitios. !or public purpose need not be stated. Section 49'(3) of tbe Act specifically
provides that no fresh declaration under ss. 6 to 10 of the Act shall be ne~-
sary.
Section 49(2) of the Act implies public purpose inasmuch as the compensation for_ acquisition is payable out of 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) ofi 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
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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. 'fhe
public purpose is to prevent people from making exaggerated clain1s.
Section
~9(2) of the Act is subsidiary to public purpose. ~The acquisition is jn aid of
that purpose. [83 A-CJ.
(b) Section 49 (2) of the Act does not require that the opinion shall be formed
after hearing the person concerned. [83 DJ.
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SUPREME COURT REPORTS
[1975] SUPP. S.C.R.
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## Text

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.·":,.< _HARSOOKDAS BALKISSENDAS
v.
THE FIRST LAND ACQUISITION COLLECTOR & ORS.
April 8, 1975
lA. N. RAY, C. J. AND V. R. KRISHNA IYER J.)
Land Acquisition Act, s. 49(2)-Scope of.
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 \Vhich the land first sought to be acquired forms a part.
A part cf 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 unreasonable 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 v;.·as acquired. The appellant contended: (1) that s. 49(2) applies only to
land with buildings, that the landi acquired was a vacant ]and with no house or
buildings; (2) that he made the claim for compensation under third and founb.
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
v;as no further declaration of public purpose and the acquisition Was therefore
invalid.
Dismissing the appeal,
HELD :(!) (a) Land is defined ins. 3(a) of the Act to include benefits to
ari'le 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-CJ
(b) The contention that if there is vacant land, s. 49(2) of the Act ha.<i no
application is not only a misreading of the decision of the Court in State of Bihar
v. Kundan Singh [1964J 3 S. C. R. 382 but also the relevant Section. [81 Dj.
In the instant case the contention of the appellant that it was vacant land
was also contrary to facts. The material on record shows that there were certain
structures on the land, ,[80 H].
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(2) If a claim under the third clause of s. 23(J) 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 BJ.
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(3) (a) Sub·scctions (2) and (3) of s. 49 of the Act indicate that the acquisitios. !or public purpose need not be stated. Section 49'(3) of tbe Act specifically
provides that no fresh declaration under ss. 6 to 10 of the Act shall be ne~-
sary.
Section 49(2) of the Act implies public purpose inasmuch as the compensation for_ acquisition is payable out of 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) ofi 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
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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. 'fhe
public purpose is to prevent people from making exaggerated clain1s.
Section
~9(2) of the Act is subsidiary to public purpose. ~The acquisition is jn aid of
that purpose. [83 A-CJ.
(b) Section 49 (2) of the Act does not require that the opinion shall be formed
after hearing the person concerned. [83 DJ.
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80
SUPREME COURT REPORTS
[1975] SUPP. S.C.R.
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CIVIL APPELLATE JURISDICTION : Civil Appeal No. 558 of 197(}
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From the Judgment and Order dated 26th May, 1965
of the
Cakutta High Court in Appeal from Original Order No. 260 of 1973.
L. M. Singhvi, 0. 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 al!eges that there arc 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 water-logged 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 agr~ed that the claim put forward by the
appellant under the clause "thirdly of sub-section ( l) 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.
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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 Janel.
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
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HARSOOK DAS v. LAND ACQUISITION COLLECTOR (Ray, C. J.)
81
section 49(2) of the Act applies only where land with building is
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taken. Section 49(2) of the Act is qs follows :-
"If, in the case of any claim under section 23, sub-section
(!), 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
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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 bullding
or part of a building.
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Counsel for the appellant relied on the decision o!f this Court in
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State of Bihar v. Kundan Singh & Anr. [1964] 3 S.C.R. 382 anrt
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 ts not only misreading the decision but also the relevant
section.
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In Kundan Singh'; case (supra)
the question for
considerati~
was whether the desire of the owner for the acquisition of the entire
house under section 49 (!) of the Act should be expressed before the
award is made.
Jn Kundan Singh's case (supra) the State acquired
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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
sec<ion 11 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.
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 sectiqn 23 ( 1)
of the Act and the Government is of opinion that the claim is unreaG
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SUPREME COURT REPORTS
(1975] SUPP, S.C.R.
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sonable or excessive, the Collector may, at any time before the award is
made, order the acquisition of the land.
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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 front
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 clajmed
damages only in respect of severance. Section 23 ( 1) clause three of
>he Act speaks of damage sustained by the person interested at the
time 'of the Collector's taking possession of the land· by reason af
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
ether 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 sectiou 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 vacaut land section 49(2) · ot 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
abng 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 aud
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 (I) of the Act is excessive.
Reference to the
third clause of section 23 (I) 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 hav~ been a fresh declaration of public purpose after the proposed acquisition of the remaining
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'HARSOOK DAS V. LAND ACQUISITION COLLECTOR (Ray, C. J.)
8'.>
portion of the land.
This contention is unacceptable.
Suh-sections
(2) and (3) of section 49 of the Act indicate tbat 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 ot 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.
AJI that is necessarv 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 tbe Act is subsidiary to public purpose. The acquisition is for public purpose.
The
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) 6f 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 that 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 .
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