Rajagopala ayyangar, J.
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 Governmentwhereupon the petitioner filed another petitionpurporting to be under Section 49(1) of the Act requesting that the Land Acquisition Officer, whois the 2nd respondent herein, should refer to thecivil court for enquiry the question as to whetherthe land proposed to be acquired under the Actdoes or does not form part of her house. Thispetition was rejected by the Land AcquisitionOfficer on the ground that it did not comply withthe terms of Section 49(1) of the Act and it is thevalidity of this order of the Land Acquisition.Officer refusing to refer the dispute to a civilCourt that is the subject-matter of this writ petition. The provisions of Section 49, Land Acquisition Act,are in these terms:
'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 desire that the whole of such house, manufactory or building shall be so aocquired:
Provided-that the owner may, at any timebefore the Collector has made his award underSection 11 by-notice in writing withdraw or modifyhis expressed desire that the whole of suchhouse, manufactory or building shall be sOacquired: Provided also that if any question shall ariseas to whether any land proposed to be taken under this Act does not form part ofa house, manufactory or building within themeaning of this section, the Collector shallrefer the determination of such question to thecourt and shall not take possession of such landuntil after the question has been determined.In deciding on such a reference the courtshall have regard to the question whether theland proposed to be taken is reasonably required for the full and unimparied use of thehouse, 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 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 'be acquired. In the absence of such an expression of a desire on the part of the owner, the provisos to Section 49(1) would not come into operation. Whether the owner does not express his or her desire to the entire property being acquired, he or the would be entitled to a payment of damages assessed under Clause (4) of Section 23 of the Act which are In these terms:
'Fourthly the damage (If any) sustained by the person interested, at the time of the Collector's talcing possession of the land, by reason of the acquisition injuriously affecting his other property, moveable or immoveable in any other manner or his earning.'
Section 49(1) and Sub-section (4) of Section 23(1), Land Acquisition Act refer to two alternatives which are open to the owner of a property which is being acquired to adopt. It is admitted in the present case that the petitioner did not express her desire that the entire building should be acquired on the footing that It was only a part of the building that was the subject-matter of acquisition by the Government.
In these circumstances, I am clearly of the opinion that the petitioner was not entitled to have the question whether the land proposed to be acquired was or was not part of her residential house, referred to the civil Court for adjudication. The order of the Land Acquisition Officer refusing to refer the question to & civil Courtis, therefore, correct. In the result the writ petition fails and is dismissed.