Saraswati Pattack v. Land Acquisition Deputy Collector, Champaran .

Chapman, J.:— In the course of land acquisition proceedings for the purpose of a drainage scheme within the town of Motihari, an objection was made that a certain piece of acquired land upon which there was a platform was part of the objector's house and that therefore under Section 49 of the Land Acquisition Act the Land Acquisition Deputy Collector should either acquire the whole house or refer the question to the civil Court. The Deputy Collector noted that he had seen the platform of the house in question and that the objection did not fall under Section 49 of the Act, as the platform was an addition and in no sense part and parcel of the house. He therefore dismissed the objection.

2. The objector moved the Deputy Collector, again alleging that the Deputy Collector was not competent to decide the question whether the land formed part of the house or not. The Deputy Collector directed the petition to be filed and made no reference to the civil Court. The objector has now moved this Court in revision, praying that the order refusing a reference to the civil Court should be set aside and that a reference should be directed. The motion has been opposed on one ground only, that is, that this Court has no jurisdiction to inter fere with the Land Acquisition Deputy Collector S. 49 requires the initiation of a judicial proceeding in the civil Court for the determination of such a question. The statute provides that the first step in that judicial proceeding shall be a reference by the Deputy Collector. I am of opinion that the first step in a judicial proceeding must be held to be a judicial step and that the act making a reference or refusing to make a reference is an act with which we can interfere on the ground that the Deputy Collector is a Court when he takes such a step or refuses to take it.

3. The Calcutta High Court assumed jurisdiction in cases of this kind in the case of S. 49 in the case of Krishna Das Roy v. Land Acquisition Collector of Pabna(1) and in the case of S. 18 in the Administrator General of Bengal v. The Land Acquisition Collector(2). It is quite clear that the Deputy Collector had no option in the matter. He was bound to make the reference.

4. I would accordingly set aside the order of the Deputy Collector refusing to refer the question to the civil Court and I would direct that a reference be made to the civil Court for the determination of the question, whether the land proposed to be taken is reasonably required for the full unimpaired use of the house and whether in those circumstances the whole house should be acquired or only the particular piece of land which the Deputy Collector proposes to acquire. The objector is entitled to his costs.

5. Roe, J.:— I agree.

V.S/R.K

6. Appeal allowed.