1. This is an appeal from an order of the Special Land Acquisition Judge at Alipore on a reference made by the Collector under Section 49 (1) of the Land Acquisition Act. It appears that the owner of the house demanded a reference on the point, on the ground that the cutting of the corner of his compound with the whole of one and part of a second godown near the gate would be the acquisition of a part of his house contrary to the provisions of the Act. The learned Collector in making the reference drew attention to the question of what would' be reasonably required for the full and unimpaired use of the house, but he very properly made the reference in terms of the Section for the determination of the question whether the land proposed to be acquired does or does not form part of the house. The learned Special Land Acquisition Judge appears to have entirely ignored this question, which is the only question he had to decide, and to have based his decision on a clause in Section 49 which allows him to take into consideration the question whether the land proposed to be taken is reasonably required for the full and unimpaired use of a house, manufactory or building. That such a question should be taken into consideration where the circumstances allow, there can be no doubt. But it cannot be held that that is the only question, or indeed the main question to be decided.
2. In appeal before us a preliminary objection is taken that no appeal lies, and the authority of Hasun Molla v, Tasiruddin 15 Ind. Cas. 925 : 39 C. 393, is cited. That is direct authority only for the proposition that an order of the Special Land Acquisition Judge refusing to restore a claim case by setting aside a decree passed ex parte for default of the claimant, is not an award and does not come within Section 54 of the Land Acquisition Act, but the learned Judges who decided that case pointed out that in every case the order complained of must be considered and the Court has to see whether that order is an award or any part of an award. An order of this nature has bean dealt with in appeal on several occasions by the Allahabad Court and by the Madras Court, and it has never been doubted that an appeal would lie. But assuming that it did not lie, we should certainly have to interfere in this case in the exercise of our powers of revision, which we have been asked to exercise by a petition upon which a Rule has been issued.
3. We have already noted that the learned Judge's judgment had altogether missed the point for adjudication : and the only point for consideration is whether these godowns do or do not form part of the premises which consist of a gentleman's house and the necessary outbuildings attached to it, or whether they are separate pieces of land which can be taken away without detriment to the reasonable requirements for the full and unimpaired use of the house. In deciding the latter point the learned Judge makes use of a somewhat curious argument. He says that because the accommodation for servants is already extremely defective it cannot injure the owner to make it still more defective. This is an argument to which we cannot accede. The fact is that these two godowns which the learned Judge calls durwan's godowns' are the only servants' house, properly speaking, in the whole of the premises. The premises have been let in flits apparently for many years and there are two kitchens one on each side of the house which, of course, cannot be used as residences for the servants. There is a stabla and there is a very small hut by the side of the stable, which is said to be the residence of the sweeper. Where the superior servants of the two tenants live we are at a loss to conceive, unless they live in these durwan's lodges. The Judge himself shows that no durwan is required, because he says no carriages ever enter the compound. It seems to us that these two godowns are necessarily part and parcel of the building and a most important part of that building for the purpose of letting it out to gentlemen as a place of residence.
4. We must, therefore, set aside the order made by the learned Judge and direct that this portion of the building be not acquired unless the whole premises are acquired by the Land Acquisition Collector. The costs given against the claimant in the lower Court must be refunded, if paid, and there will be costs of this hearing in favour of the appellant.
5. The Rule will be made absolute for the same reasons without costs.