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-sections (1) and (2) were applicable, a direction was made under Sub-section (4) of the aforesaid section that provisions of Section 5A of the Act would not apply. Notification under Section 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, Sub-section (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 Rai Kumar Srivastava, counsel for the appellants argued this appeal only on the point noted above. We have heard Sri Rai 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:
'Provided that the owner may, at any time before the Collector has made his award under Section 11, by notice in writing, withdraw or modify the 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 if 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 been determined. 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 or building.
(2) If in the case of any claim under Section 13. 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 formed a part.
(3) In the case last herein before 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'.
3. Our reading of this section is that the provisions of the Act would not apply if acquisition of only part of any house, manufactory or other building was to be contemplated when the owner desired that the whole of such house, manufactory or building was to be acquired. In case whole of any house, manufactory or building was not to be acquired when so desired by the owner, acquisition of a part of the same could not take place and thereby all proceedings under the Act had to be dropped. The question of taking further proceedings in the matter would then not arise. Proviso two contemplated that if there was a contest whether the land proposed to be acquired under the Act formed part of a house, manufactory or building within the meaning of this section, then the Collector could not determine such a question himself, but had to refer such a question to the Court and so long as that question had not been decided by the Court, possession of such land could not be taken. What the Land Acquisition Officer in this case did was, that in spite of the petitioners moving him under Section 49 to acquire whole of manufactory or building existing on the plots Nos. 539 and 552 in case a part of these was to be acquired, to permit them to file claim. He further said that he would consider this point at the time of making the award. This is not a correct approach. The question of making award would not arise in case acquisition of only a part of manufactory or building was to be made because in that case acquisition proceedings by virtue of Section 49 would have to be dropped. The Land Acquisition Officer, therefore, had to decide this point first and not to postpone the same inasmuch as further proceedings could not take place unless this point had been decided first. Moreover, by virtue of proviso two if the Land Acquisition Officer was of the view that there was a contest about the question whether the land about which the petitioners moved, formed part of manufactory or building or not, then he had to refer the same to the Court for determination before taking further steps in the matter. The order of the Land Acquisition Officer dated 10-9-1969, of which Annexure 9 to the writ petition is a copy, therefore, is not a correct order and it has to be quashed.
4. 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.