A.K. Sinha, J.
1. This is a Rule obtained by the petitioner for quashing an Award given by the Collector for acquisition of petitioner's land under Land Acquisition Act 1 of 1894 (referred to herein as the Act). The petitioner purchased certain lands including a tank measuring 2.12 acres at Ichhapore, Howrah and set up a factory there. At the instance of the Howrah Improvement Trust there was a proceeding for acquisition of the petitioner's land contained in C. S. Plots 1296, part of 1297 and 1298 for future improvement scheme of that locality in Howrah. On these plots 1296 contains a tank. The petitioner filed claims in respect of all these plots and tank and award was given in respect of 1297 (part) and 1298 on March 26, 1966. Possession of these plots was taken on 30th March. 1966 by the Collector,
2. Thereafter, It is said from a notice of 22nd August, 1966, under Section 12(2) of the Act that another award in respect of plot No. 1296 that is a tank, was made on August 19, 1966. On 24th August, 1966, the representative of respondent No. 1 came to take possession of the tank but the petitioner refused to give possession and then on August 24, 1966 by a petition prayed before the Collector not to take possession on the ground that the award so made was illegal. It is the validity of this award which has been challenged in the present Rule,
3. It is argued by Mr. Gupta on behalf of the petitioner that there is no provision under the Act for piecemeal acquisition or two or more awards separately in respect of acquisition covered by one notification and declaration under the Act. For this purpose he relies on : 2SCR774 , Somawanti v. State of Punjab; a Bench decision of this Court in Corporation of Calcutta v. Omeda Khatun, : AIR1956Cal122 and also in R, C. Sen v. Trustees for the Improvement of Calcutta, ILR 48 Cal 892 = (AIR 1921 Cal 340). I do not think, the decision of the Supreme Court in Somawanti's case. : 2SCR774 has any application to the facts of the present case.
4. In the Bench decision of this Court in : AIR1956Cal122 what happened was on July 29, 1927, a declaration under Section 6 of the Act was published in respect of 11 Kattahs of land with a two-storied building and other structures belonging to one Tarab Ali Sarang but only in respect of a little over 4 kattahs an Award was made on March 7, 1932 and possession was taken by the Corporation of Calcutta. Thereafter, between 1932 and 1940 Tarab Ali and after his death his heirs made successive applications for exemption of the rest of the portion of the land and building covered by the above declaration but their petition was rejected by the Corporation. Then in 1949 the Corporation requested the Land Acquisition Collector to proceed with the acquisition. Objection was taken by the heirs of Tarab All again which was ultimately rejected by the State Government. Then they obtained a Rule from this Court in writ jurisdiction challenging the validity of such acquisition. It was held following the Bench decision of this Court in ILR 48 Cal 892 = (AIR 1921 Cal 340) that there cannot be any piecemeal acquisition in respect of the land 'as the Act refers only to one notice, one proceeding and only one award and made regarding one holding and one ownership'. In view of the amendment of Sections 5A and 6 of the Act by the Land Acquisition (Amendment and Validation) Act, 1967 it is doubtful if the proposition laid down can be treated still as good law. In any case, this decision also lays down that
'from the very nature of the case more than one Award has to be made only in two classes of cases namely, (a) where land under acquisition belongs to different individuals and (b) where the acquisition proceeding in respect of the declared land (whether under the ownership of a single or different individuals) is held up by circumstances over which the Acquiring Authority has no control, e.g., by an injunction or decision of a Superior Court and that injunction is subsequently dissolved or decision overruled'. In my view, the present case is covered by class of cases indicated in the second exception. It appears from the letter dated April 11, 1966, addressed by the Additional Land Acquisition Officer to the Chairman, Howrah Improvement Trust, that the petitioner made an application for exclusion of the tank from acquisition as it was the main source of supply of water for running the factory. The L. A. Officer was of the opinion that the tank was exclusively necessary for running of the factory but he also indicated that the petitioner claimed compensation to the extent of rupees one lakh for severance and injurious affection under Section 23 of the Act. It was further stated by him that considering the above circumstances the preparation of an Award for the tank was stopped pending final decision of the matter. To this there was a reply by the Chief Valuer of the Howrah Improvement Trust in which he stated that the tank was within the scheme and It could not be excluded from the acquisition. He, therefore, requested to pay fair and reasonable compensation accordingly. From these correspondence which are not disputed it seems clear that the circumstances under which the Award in respect of the tank was withheld by the Land Acquisition Officer were brought about by the petitioner itself and clearly the respondents cannot be said to have had any control over the circumstances. The tank was covered by the same declaration and the petitioner wanted exclusion of the tank and then also claimed compensation of a large sum for severance and injurious affection. The Land Acquisition Officer had to refer the matter to the authorities of the Howrah Improvement Trust as the lands were intended to be acquired for the improvement scheme at the instance of Howrah Improvement Trust This being the position, no valid objection can be taken to an Award made subsequently in respect of the tank when the Improvement Trust could not accede to the petitioner's claim for exemption of the tank from acquisition. In my view, a separate Award made in respect of the disputed tank is valid.
5. Accordingly, this Rule is discharged but there will be no order as to costs.
6. Let the operation of this order be stayed for three weeks from date.