B.K. Mukherjea, J.
1. This rule is directed against an order passed by the Calcutta Improvement Tribunal dated 18th April 1939 rejecting a reference made to it by the First Land Acquisition Collector, Calcutta, under Section 49(1), Land Acquisition Act. The material facts may be shortly stated as follows: Premises No. 40, Lake Road which comprises an area of 6B-5C.6ch of lands was scheduled for acquisition under the Land Acquisition Act as amended by the Calcutta Improvement Act, under declaration No. 12578L-A, dated 19th June 1937. One Saradindu Mukherji, who is stated to be the owner of the premises, applied to the Board of Trustees for the Improvement of Calcutta for exemption of this property from acquisition under Section 78, Calcutta Improvement Act. This application was rejected. Thereupon there was an agreement entered into between the owner and the Board on 24th January 1939 by which a portion of the premises measuring 58ct 12ch only which was coloured blue in the map was to be acquired and the balance measuring 66ct 12ch, which was painted pink was exempted from acquisition. Proceedings were then taken up by the Collector for the acquisition of the blue plot only and the petitioners who are alleged to have huts on the pink portion filed applications before the Collector stating inter alia that the land to be acquired contained a part of the access from the lake to their structures and that filtered water connexions and drains to their huts also ran through that land. It was further stated that they had a right to use the water of the tank and Jhil in premises Nos. 40 and 40/1 Lake Road. As the afore, said access and water connexions were said to constitute an integral part of the huts in the excluded portion they prayed for the acquisition of these huts as well. Upon that the Collector made a reference to the Court under Section 49(1), Land Acquisition Act, and the question referred for determination was, whether the portion of the land intended to be acquired formed a part of the house of the petitioners within the meaning of Section 49, Land Acquisition Act. The tribunal by its order mentioned aforesaid rejected the reference on the ground that the reference was incompetent. It is against this order that the present Rule has been obtained.
2. Mr. Bepin Chandra Mullik who appears for the opposite party has raised a preliminary point and he has argued that as the order rejecting the reference could have been challenged by way of appeal the petition for revision does not lie. We do not think that this contention is sound. Prom the decisions of the tribunal only a limited appeal is given by the Act 18 of 1911 and as the Preamble of that Act says, an appeal lies only from the award of the tribunal constituted under the Calcutta Improvement Act of 1911, I am unable to hold that a decision on or a determination by the tribunal of any matter which has no reference to compensation in some form or other comes under the definition of an 'award'. That no appeal lies in such cases has been expressly held by a decision of this Court in Sarat Chandra Ghise v. Secy. Of State (1919) 6 A.I.R. Cal. 86 The case in Dalchand Dinghi v. Secy. of State (1917) 4 A.I.R. Cal. 148 upon which reliance has been placed by Mr. Bepin Behary Mullik, cannot, in our opinion, be regarded as an authority in support of a contrary view. In that case it was not disputed that an appeal would lie only against an award but it was observed by the learned Judges that such orders had been dealt with in appeal by the Allahabad and Madras High Courts. The learned Judges however concluded by saying that as there was a petition in revision filed in that case upon which a rule was obtained they had ample authority to deal with the matter under Section 115, Civil P.C. We are unable to hold that the order passed by the tribunal in the present case was an appealable order.
3. Coming now to the merits of the case it would seem that the tribunal has rejected the reference relying on certain previous decisions of its own where under similar circumstances the reference was held to be incompetent. The reason in substance appears to be this. There was a declaration here made under Section 6, Land Acquisition Act, which covers the entire premises in eluding both the pink and the blue plots. The agreement entered into between the trustees on the one hand and Saradindu. Mukherji on the other was not in pursuance of Clause (4) of Section 78, Calcutta Improvement Act, and consequently there was no abandonment within the meaning of Clause 5 of that Section. It is said therefore that as there has not been an abandonment of the land acquisition proceedings with regard to the pink portion Section 49, Land Acquisition Act, is inapplicable, for it cannot be said that the provisions of the Act are being enforced1 for the acquisition of a part of the house, unless the acquisition of the lands upon which the remaining part of the house stands is abandoned. There can be no doubt, in my opinion, that unless at the present moment there has been an abandonment of the acquisition with regard to the pink portion no question of reference under Section 49, Land Acquisition Act, can possibly arise. But the error lies in assuming that the only way of abandoning acquisition is that provided by Section 78, Calcutta Improvement Act. Section 78 lays down one particular method, according to which, if any area, the acquisition of which has been sanctioned by the Local Government, is not required by the Board for the execution of the scheme the Board may abandon the acquisition proceedings in consideration of certain money payments being made by the owner or an agreement being executed by him in conformity with the provisions of that Section. But even apart from Section 78, Land Acquisition Act, there is nothing in the Land Acquisition Act or the Calcutta Improvement Act which prevents the acquiring authority from abandoning a portion of the land in respect of which proceedings under the Act have been taken. As was observed by D.N. Mitter J. in Secy. of State v. Mahip (1936) 41 C.W.N. 437.
it was consistent with commonsense that the party which had been given power to acquire lands for certain purposes had also the power to abandon any such land which was intended to be acquired from acquisition unless there was provision in the statute preventing such piecemeal acquisition.
4. This is also the principle underlying Section 48, Land Acquisition Act. Under Section 24, Calcutta Improvement Act, very comprehensive powers are given to the Board of Trustees and they can enter into and perform any contract which they might consider necessary for carrying out the purposes of the agreement. There is nothing in law therefore which prevents the Board from abandoning any portion of the land intended to be acquired in pursuance of a contract entered into under the provisions of Section 24, Calcutta Improvement Act. Whether there has been abandonment or not on any particular case would of course depend upon the circumstances of that case. Mr. Bepin Chandra Mullik contends before us that the agreement in this particular case cannot amount to an abandonment as there are various other things which are required to be done by the owner and unless these things are done the matter cannot be said to be complete. There is nothing however said on this point by the tribunal and we have no materials before us upon which we can hold that the acquisition of the pink portion has not been definitely abandoned. On the other hand the order of the Collector clearly suggests that the agreement has been acted upon and proceedings have been started to acquire the blue portion only to the exclusion of the pink plot.
5. In these circumstances it seems to me that if the petitioner's case is true, circumstances are present which would justify the Collector in making a reference under Section 49(1), Land Acquisition Act, and in our opinion the matter ought to be investigated on its merits by the tribunal. The result is that the Rule is made absolute. The order of the tribunal dated 18th April 1939 is set aside and the matter is sent back to him in order that the reference case may be disposed of on its merits and according to law. It is desirable that the reference should be heard in the presence of Mr. Saradindu. Mukherjee who is stated to be the owner of the plots and it would be open certainly to the opposite party to raise any other contention relating to the maintainability of the reference at the instance of the petitioners who are stated to be the tenants in occupation of certain huts upon the land. There will be no order as to costs in this rule.
6. On the merits the simple question is whether the application of the tenants under Section 49, Land Acquisition Act, 1894, was premature or not. The order of the tribunal is rather unfortunate in form, as it suggests that the only basis of decision is the fact that as Government might change its mind, and eventually go on with the acquisition, so the application of the tenants cannot be considered. The suit of a plaintiff might equally well be dismissed on the ground that he might subsequently change his mind and not execute his decree if obtained, and proviso 1 to Section 49 itself makes provision allowing the owner to change his mind at any time before the award is made. The point for decision is whether, under the law, circumstances exist by which the tenants have the right to make the application for a reference; this is to be decided by reference to the terms of Section 49 it self, and to the facts. Under Sub-section 1 of Section 49 the provisions of the Act are not to be put into force for the purpose of acquiring a part of a house, manufactory or building if the owner desire that the whole of such house, manufactory or building shall be acquired, and then under the terms of proviso 2 provision is made that if any question shall arise as to whether any land proposed to be taken under the Act does or does not form part of a house the Collector is to refer the matter to the Court. It will be seen that the precise time at which the reference is to be made is not clearly specified; certainly it must be made if the provisions of the Act have already and clearly been 'put in force' but they are not inconsistent with a reference being made at an earlier stage. In the present case the method by which the provisions of the Act are to be put into force for the purpose of acquiring a portion of the premises in question is by way of declaration and notice for acquisition of the whole, followed by an agreement under Section 24, Calcutta Improvement Act, made with the landlord for exempting a portion, and hence by eventual abandonment of the acquisition under Section 48. In such a case it is oven more difficult than in a case where the proposal to acquire a portion is a direct one to determine the precise point of time at which it may be said that the provisions of the Act are being put into force for the purpose of acquiring a portion. In the present case there was originally an application for action under Section 78, Calcutta Improvement Act, but this was rejected by the trustees, and the present proposal for action under Section 24 was adopted, and has been carried out to the extent of a formal agreement having been made.
7. Mr. B.C. Mullik draws attention to the terms of Sub-section (5) of Section 78, to the effect that when an agreement has been executed in pursuance of Sub-section (4) or payment has been made under the proviso the proceedings for the acquisition shall be deemed to have been abandoned and contends that on the analogy of those provisions the stage for the present application in the analogous procedure by way of Section 24 and of eventual formal abandonment under Section 48, Land Acquisition Act, has not been reached, but consideration of these provisions seems to support rather the contrary view. It emphasizes the fact that in order to find out the whole land acquisition law applicable here we have to read the Calcutta Improvement Trust Act and the Land Acquisition Act as one, and as has been pointed out in Secy. of State v. Hindusthan Co-operative Insurance Society Ltd. incorporation of the provisions of the Land Acquisition Act into the provisions of the Calcutta Improvements Trust Act is a case of legislation by reference, the terms incorporated being those of the Land Acquisition Act as it stood when it was adapted (in the schedule) and incorporated under Sections 69 and 71(b), Calcutta Improvement Act. In short the present action taken by way of agreement under Section 24, Calcutta Improvement Trust Act, for exemption of acquisition of part of the premises following steps taken for acquisition of the whole amounts to this that the provisions of Land Acquisition Act (as part of the Calcutta Improvement Trust Act) are being put into force for the purpose of acquiring a part only of the premises in question. The Collector himself appears to have understood the position to be such for in his order of reference, after setting out the contentions of the applicants he concludes:
I beg therefore to refer for the decision of the Court as to whether the portion of the premises intended to be acquired form part of the home of the petitioners within the meaning of Section 49(1), Land Acquisition Act.
8. I think therefore that the application was not premature, and that the tribunal has failed to exercise the jurisdiction vested in it.