The Land Acquisition Act, 1894 creates two separate remedies for an owner when only part of a house is proposed to be acquired. First, under Section 23, the owner can claim additional compensation for the loss of value or utility to the remaining part of the house. This claim is maintainable in reference proceedings under Section 18. Second, under Section 49, if the owner desires the acquisition of the whole house, he must express this desire to the Collector by notice before the award is made under Section 11. The prohibition in Section 49(1) bars the Act from being put in force to acquire only part of the house if such a desire is expressed. The first proviso to Section 49(1) allows the owner to withdraw or modify such a desire before the award.
It is clear from the scheme of Section 49 that an objection to the acquisition of a part of a house, specifically the desire for total acquisition, must be made before the award is pronounced under Section 11. An owner who allows proceedings to result in an award forfeits the right to invoke Section 49 subsequently. The Court of Reference under Section 18 has no jurisdiction to entertain pleas that amount to a request for total acquisition under Section 49.
In the present appeal, the owners' original petition under Section 18 was for additional compensation on the ground that the acquisition affected the utility of their remaining property. This was a claim under Section 23. However, the High Court, in the appeal from the reference, entertained a contention that the Land Acquisition Officer should have acquired the main building as well. The Supreme Court held that the District Judge did not accept the owners' evidence that an application under Section 49 had been made. Since the proper forum for Section 49 claims is a fresh proceeding where the owner expressly demands total acquisition before the award, and such a step was not taken, it was error for the High Court to allow this point in an appeal arising under Section 18. The appeal is allowed, the High Court's order is set aside, and the reference proceedings under Section 18 are restored.
