V. Khalid, J.
1. The petitioner owns a property situated in R. S. No. 112/6 of Keezhalloor Village. There are 9 shop rooms in this property which are numbered as 129 to 129H of Keezhalloor Panchayat. There was a proposal to acquire part of this survey number for the purpose of constructing an approach road to the acqueduct at Keezhallur. The property proposed to be acquired was a small portion of the survey number on which was situated room No. 129-H. The petitioner came to know of this proposal and therefore filed a representation to the Executive Engineer, Pazhassi Project, on 13-9-1977, with copy to the Superintending Engineer, informing them that if only a portion of the building constructed in the survey number was acquired, that would have the effect of putting the remaining portion useless and requesting that the entire rooms be acquired. It is averred in the petition that this representation was brought to the notice of the Collector and the legality of the acquisition of a portion of the property was even then considered. In the meantime, the Land Acquisition Officer issued Ext. P-1 notification under Section 3(1) of the Land Acquisition Act, for short, the Act, in Form III on 31-10-1977. It is stated in the petition that an objection was filed by the petitioner to Ext. P-l notice, not objecting to the acquisition but objecting to the acquisition of only a portion of the building. Since nothing took place pursuant to the objection so filed, the petitioner filed another representation before the Land Acquisition Officer, the 3rd respondent, on 30-3-1978 as per Ext. P-2. The awards Ext. P-3, was passed on 1-4-1978 under whichthe petitioner was awarded Rs. 2734.07 for the portion of the building acquired. The petitioner accepted the amount under protest on 17-4-1978.
2. Thereafter the petitioner filed another representation to the 3rd respondent with a request that his objection be referred to the appropriate Civil Court since the acquisition was only of a portion and since he wanted compensation for the entire building affected by the acquisition. Since nothing took place, he filed Ext. p-5 on 18-1-1979 to the 2nd respondent, District Collector, Cannanore, mentioning therein about the petition filed by him to the Superintending Engineer and requesting for appropriate steps being taken under Section 53 of the Act. This was followed by a reminder, Ext. P-6. The rooms which were not acquired are BOW re-numbered as KLP. VI 83A to 83H. The building, according to the petitioner, is worth Rs. 75,000/-. The very foundation of the building is shaken by the proposed acquisition. This petition is filed for the issuance of an appropriate direction to respondents 1 to 3 to acquire on reasonable compensation the remaining portion of the building and to dispose of the representations filed by the petitioner.
3. The counter-affidavit filed by the first respondent discloses the following facts: Pursuant to the proposal to acquire the property in question, a joint inspection of the property was conducted by the 3rd respondent and the Junior Engineer, Section No. II, Tellicherry, at which time the petitioner was also present at the site. The total extent of the property required for the purpose of acquisition from the petitioner's hold-tag was only 0.0050 hectare (1-1/4 cent). A notice under Section 3 of the Act, read with Rule 3 of the Rules was duly served on the petitioner. No objection was filed by the petitioner in response to the said notice. Instead he gave ad-vance possession of the land on 18-10-77 and the land was handed over to the P. W. D. for the purpose of formation of approach road on that day itself. The petitioner did not indicate his desire --nor put forward his objection; -- about the need to acquire the entire portion of the building at the time the property was surrendered voluntarily to the auth-orities. In fact, he gave a consent statement while surrendering the land. Shop Nos. 129, 129A to 129-G were constructed during the year 1973-74 and the new addition numbered as 192-H was constructed in the year 1976-77, as is disclosed from the register of buildings kept by the Panchayat. The award enquiry notice under Section 9(5) was published at pages Nos. 801-803 of Kerala Gazette No. 12 dated 21-3-1979 and the enquiry was held on 25-3-1978 to 31-.1-1978. The petitioner was pre-sent at the enquiry on 25-3-1978. He did not demand acquisition of the entire building on that day. The award was made on 1-4-1978 after this enquiry. The authorities were satisfied that the acquisition of shop room No. 129-H which was only an addition put up subsequently touching the main building would not affect the land or its structural stability. The main building is a two-storied one containing 8 rooms which are tenanted. The acquisition of the main building will result in the dispossession of the tenants in occupation. The petitioner did not file before the Land Acquisition Officer any objection within time in response to Section 3 notice. It is true that he sent a petition on 13-9-1977 to the Executive Engineer, Cannanore. The entire building was not acquired for the reason that it was not reasonably required and the acquisition of this portion would not impair the use of the main building. It is further averred in the counter-affidavit that it was not necessary to acquire a huge two-storied building which would result in eviction of the occupants of the shop rooms. The belated objection of the petitioner against the acquisition of a portion is only to get compensation for the building in the possession of tenants paying low rents. The petitioner had sent a petition on 30-3-1978 demanding acquisition of the entire building and payment of compensation urgently. This was not considered since it was belated. The subsequent representations were not cons;der-ed since they were not statutorily entertain able. The Executive Officer of Keezhalloor Panchayat had certified that room No. 129-H was put up in 1976-77. This room was put up on a separate foundation with separate walls. No reference to the civil Court wasnecessary because the petitioner had not moved the authorities in time under Section 53 of the Act.
4. The petitioner's counsel submits that the acquisition proceedings are bad for violation of the mandatory provisions contained in Section 53 of the Act. According to him, once the aggrieved party moves under Section 53 of the Act, the authorities have to hold their hands and either proceed to acquire the entire property or refer the matter lo a competent Civil Court for resolution of the dispute between the parties as to whether any land proposed to be taken under the Act does or does not form part of a house within the meaning of the section. The respondents' stand is that the property acquired does not form part of a building and also that the petitioner has not moved the au-thorities within time under Section 53 of the Act. What falls for decision in this ease is whether the petitioner is entitled to succeed on his plea under Section 53 of the Act. While considering this, it is necessary to consider the ambit and scope of Section 53 of the Act.
5. First regarding facts: In the absence of a reply affidavit on the side of the petitioner, the averments in the counter-affidavit have to be taken as uncontroverted. The facts emanating from the petition and the counter-affidavit for the purpose of disposal of this petition in the context of Section 53 of the Act are as follows:
6. The building in question was inspected by the Executive Engineer, Cannanore, with the Junior Engineer, in the presence of the petitioner. The requisitioning authority wanted only a portion of the land on which one shop alone stood. The petitioner did not file any objection to Section 3 notification within time. He gave advance possession of the land on 18-10-1977 and possession was taken on that day itself. The main building consists of shop room Nos. 129 and 129A to 129G. This was constructed during the year 1973-74. Shop room No. 129H was constructed during the year 1976-77. This is the shop room which had to be acquired. The petitioner appeared for Section 9(5) enquiry On 25-3-1978. The award was passed on 1-4-1978. The question for consideration is whether Section 53 of the Act is attracted, in the circumstances ofthe case. Section 53 of the Act reads as follows:
'53. Acquisition of part of house or building;-- (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 his 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 any land proposed to be taken under this Act does not form part of a house, manufactory or building within the meanin,g 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 Ihe 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 Sub-section (1) of Section 25, thirdly, by a person interested, on account of the severing of the land to be acquired from his other land, the Government are of opinion that the claim is unreasonable of excessive, they 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 provided for in sub-sec. (2), no fresh declaration or other proceedings under Sections 6 - 10, both inclusive, shall be necessary, but the Collector shall without delay furnish a copy of the order of the Government to the person interested, and shall thereafter proceed to make his award under Section 11.'
It is clear from the above section that the provisions of the Act cannot be put into force if what is sought to be acquired is part of a house or other building and if the owner of the house desires that the whole of the buildingshould be acquired. The second proviso is important. If Section 53 applies to an acquisition then the Collector is prohibited from taking possession of the land until the question raised by the owner is determined. In this case, the petitioner had voluntarily given advance possession of the building sought to be acquired to the land acquisition authorities. This, according to me, is a clear indication of his consent for acquisition of a part of the building and he cannot now compel the authorities to acquire the entire building. This is one ground on which I hold that Section 53 is not attracted.
7. Section 53(1) comes into operation when the owner indicates his desire for the whole of the building to be acquired in a case where the acquisition is a part only of such building. The first proviso enables the owner to withdraw or modify his desire by a notice in writing. A reading of Section 53(1) with the first proviso takes me to the question as to the time when owner should express his desire to acquire the whole building. Can this desire be expressed at any time before the award In my view, the scheme of the section indicates that the expression of such desire by the owner should be within a reasonable time so that the land acquisition authorities can stop the acquisition proceedings. Since withdrawal of the desire has to be by notice in writing before the award is made, the expression of desire for the acquisition of the entire building has to be at a reasonable time earlier than what is contemplated in the first proviso. The owner of the building is the best judge to decide as to whether the acquisition of a part of his building would seriously affect his interests and result in consequent loss to him. He is alerted of the acquisition by the notification under Section 3(1) of the Act and the notice under Rule 3 of the proposed acquisition. Objection against the acquisition has (o be made within 30 days of the publication of Section 3(1) notification. Under normal circumstances the expression of desire within the meaning of Section 53 of the Act has to be within 30 days of the publication of the Section 3 notification. It may be, that in rare cases where the owner is not in a position to decide about the damage that would be caused to him. he may express his desire later. But in anycase it cannot be just on the eve of the award as in this case. That the expression of 'he desire should be at the earliest opportunity is evident from the fact that the second proviso mandates the Land Acquisition Officer to refer any dispute arising as to whether the land sought to be acquired is or is not part of a house or building for determination by an appropriate Court. In this case, the petitioner's contention that the shops to be acquired are part of a building is disputed by the authorities. If it is a bona fide dispute, it is incumbent on the Land Acquisition Authorities to refer the case to the appropriate Court to resolve this dispute. That a bona fide dispute does not arise in this case is also evident from the fact that the petitioner surrendered the building without demur.
8. That takes me to the question whether the land acquisition authorities have necessarily to refer every question as to whether any land proposed to be taken under the Act does or does not form part of a house or building. Does not the Land Acquisition Authorities have any discretion in this matter? In my view, the second proviso would come into operation only if a bona fide question arises as to whether any land proposed to be taken does or does not form part of a house or building within the meaning of the section. If the land acquisition authorities find prima facie that there is bona fide dispute and the question that has arisen hag to be decided by a Court reference is mandatory. But if the question so raised is a frivolous one or is one which is manifestly unsustainable, it is not incumbent on the authorities to refer the question to the appropriate Court. Else a recalcitrant or unscrupulous owner can effectively stall acquisition proceedings which are highly necessary in public interest by unjustified recourse to Section 53. This view of mine gain some support from the phraseology used in the section. The second proviso mandates references only when there is dispute about the land on which a building stands. The main section deals with the building while the second proviso deals with the land. Besides, the words used in the second proviso are 'if any question shall arise' and not 'if any question arises'. In my view, the use of the words 'shall arise' gives a discretion to the officerto consider the bona fides of the question raised. What I wish to emphasise is that the section does not make it obligatory on the part of land acquisition authorities to refer every question raised to the Court, because once the question raised is referred, the authori-ties' hands are tied from taking possession of the property. Surrender of possession by the petitioner in this case has virtually disarmed the authorities from invoking the second proviso.
9. Against this background, let us consider the facts of this case. During the acquisition proceedings the petitioner did not even remotely put forward a case that the entire building had to be acquired. He was aware of the statutory enquiries. The award was made on 1-4-1978. He did send a representation to the 3rd respondent, viz., the Land Acquisition Officer, on 30-3-1978, a day prior to the award. Since he had not invoked the benefit of Section 53 at any time before 30-3-1978, this representation was not considered by the authorities as the award had almost been finalised. What is more, this expression cannot be said to be the expression of a desire within the meaning of Section 53 of the Act. He sent another application on 16-5-1978 for reference of the question to a civil Court. No action was taken on this petition also since it was not a representation which had any statutory recognition. It cannot be said that the authorities acted in violation of law in not considering the representation filed on 30-3-1978.
10. The petitioner's counsel, has a case that he had informed the Executive Engineer even before Section 3 notification that the entire building should be acquired. It is disclosed in the counter-affidavit that his object was not to avert any damage to the entire building or loss to him but something else. In any view an intimation to the Executive Engineer cannot be taken as an expression of desire under Section 53 of the Act. On facts, I have no hesitation to hold that the belated request of the petitioner was rightly rejected by the. Authorities concerned,
11. Strong reliance was placed by the petitioner's counsel on the decision reported in State of Bihar v. Kundan Singh (AIR 1964 SC 350). In that case, the Land Acquisition Officer fixed thecompensation to be paid to the respondents at Rs. 4,451.5.6. The respondents not being satisfied with the award applied for reference under Section 18 of the Act. One of the grounds taken by the respondents was that other lands and buildings contiguous to the building and land which belonged to them had not been acquired and in consequence they had to suffer huge loss. The District Judge who heard the reference held that only a narrow strip of land had been left in front of the larger building and that had affected the utility of the said building. and therefore, awarded Rs. 1000/- more as compensation. The respondents were still not satisfied. They preferred an appeal to the High Court. Before the High Court for the first time, a claim was made that the land acquisition officer should have acquired the main building. That was a claim strictly coming within Section 48 of the Land Acquisition Act. Though it was contended before the High Court that this point was not taken before the Land Acquisition Officer or the District Judge, the High Court gave a direction calling upon the Land Acquisition Officer to take over the remaining area of the building and to assess the compensation thereon in due course in accordance with law. This was challenged before the Supreme Court. The Supreme Court held that the respondents had not taken any steps to express their desire that the whole of their house should be acquired and so it was not open to the High Court to allow them to raise this point in appeal which arose from the order passed by the District Judge on a reference under Section 18. The petitioner's counsel placed reliance on certain portions of the judgment, where the scope of Section 49 of the Land Acquisition Act, corresponding to Section 38 of the Act, was discussed. Specific mention was made about para 10 of the judgment of the Supreme Court in the above decision which reads as follows:
'(10) That takes us to Section 49. Section 49 reads 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 his 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 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 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 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 - 18, both inclusive, shall be necessary, but the Collector shall without delay furnish a copy of the order of the (appropriate Government) to the person interested, and shall thereafter proceed to make his award under Section 1.'
The provisions of Section 49(1) prescribe, inter alia, a definite prohibition against putting in force of any of the provisions of the Act for the purpose of acquiring a part only of any house, if the owner desires that the whole of such house shall be acquired. This prohibition unambiguously indicates that if the owner expresses his desire that the whole of the house should be acquired, no action can be taken in respect of a part of the house under any provision of the Act, and this suggests that where a part of the house is proposed to be acquired and a notification is issued inthat behalf, the owner must make up his mind as to whether he wants to allow the acquisition of a part of his house or not. If he wants to allow the partial acquisition, proceedings would be taken under the relevant provisions of the Act and an award directing the payment of adequate compensation, would be made and would be followed by the taking of possession of the property acquired. If, on the other hand, the owner desires that the whole of the house should be acquired, he should indicate his desire to the Land Acquisition Officer and all further proceedings under the relevant provisions of the Act must stop. This provision thus seems to suggest that if an objection is intended to be raised to the acquisition of a part of the house, it must be made before an award is made under Section 11. In fact, it should be made soon after the initial notification is published under Section 4; otherwise, if the proceedings under the relevant provisions of the Act are allowed to be taken and an award is made it would create unnecessary confusion and complications if the owner at that stage indicates that the objects to the acquisition of a part of his house; at that stage, it would no doubt be open to him to claim adequate compensation in the light of the material provisions of Section 23 of the Act but that is another matter.
(11) The first proviso to Section 49(1) also leads to the same conclusion. If the owner has made his 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 11; and if he withdraws his objection, further proceedings will follow and if he modifies his objection, steps will have to be taken as indicated in the other provisions of Section 49. This proviso, therefore, suggests that the objection of the owner to acquisition of a part of his house has to be considered and dealt with before an award is made under Section 11.'
Basing on these observations, it was contended that it was sufficient if the owner of the building or land expressed his desire at any time before the award was made. The petition submitted by the petitioner on 30-3-1978, according to the petitioner's counsel, should be considered as the expression of desire within the meaning of Section 53 of the Act,because the award was made only on 1-4-1978. I have no hesitation to repel this contention. The Supreme Court decision noticed above cannot be used as an authority to contend that the expression of desire can be on the eve of the award. The Supreme Court has taken care to observe that 'in fact, it should be made soon after the initial notification is published under Section 4......'.
This indicates how the Supreme Court reacted to the sufficiency of the time regarding the expression of desire contained in Section 48. The principle enunciated by the Supreme Court cannot be availed of by the petitioner in this case. In that case, the Supreme Court was dealing with an entirely different set of facts. The question whether the Collector or the Land Acquisition Officer is obliged necessarily to refer every case to the appropriate Court even when an expression of desire is made as in this case on the eye of the award was not pointedly considered by the Supreme Court in the above case since the facts of that case did not warrant such a consideration. The observation of the Supreme Court in the aforesaid case in para 12 of the judgment to the effect that 'under this proviso (second proviso to Section 49D, the Collector is under an obligation to refer the matter to the Court and he shall not take possession of the land under acquisition until the question is determined by the Court.....' cannot be relied uponto contend that the proceedings taken by the Land Acquisition Officer after the representation dated 30-3-1978 are bad for the reason that possession was given by the petitioner voluntarily. In the peculiar circumstances of this case, I am of the view that the non-consideration of the representation dated 30-3-1978 is valid in law and even on facts it is unassailable, Section 53 has not been violated in this case. The counter-affidavit has clearly shown that the shop acquired was newly constructed in the year 1976-77. This shop did not form part of the main building. The acquisition of this shop alone did not harm the other buildings. The panchayat records disclosed that this was an independent building. The object with which the petitioner desired that the entire building should be acquired is also made mention of in the counter-affidavit and this statement also has not been con-troverted. The object is to get compensation for the property in utter disregard to the large number of tenants who are holding the remaining portion of the property and eking out their livi-lihood. The counter-affidavit contains sufficient materials to hold that the shop No. 129H is a separate building and not part of the main building. For the purpose of this case, I do not think it necessary to hold that the refusal to refer the case was improper. According to me, the petitioner is not entitled to get a reference for the reason that he did not invoke Section 53 in time and also for the reason that he surrendered possession of the building unilaterally immediately after Section 3(1) notification, thus denying to himself the benefit of the 2nd proviso. If Section 53 is to be operative, the Land Acquisition Officer could not have taken possession.
For the foregoing reasons I hold that the petitioner is not entitled to succeed. The O. P. fails and is dismissed. The parties are directed to bear their costs.