Judgment

RAY, C. J. : - This appeal by certificate raises the question as to whether Section 49 (2) of the Land Acquisition Act hereinafter referred to as the Act has any application to the acquisition of the land in question.

2. The premises in question are 2 Gariahat Road now known as 2 Raja Subodh Mullick Road, Calcutta. The total area is approximately 23 bighas. The appellant alleges that there are no houses or buildings, the Land Acquisition Collector found certain structures occupied by certain persons and other structures and a compound wall and the major portion of the land to be vacant. There is a big tank covering over 3 bighas of the land. The appellant alleges that the land is highly developed and is ideal for building site. The Land Acquisition Collector found the major portion of the land undeveloped and below road level and to become water-logged during rainy season. The appellant denies these allegations.

3. Out of the total area the State in 1959 acquired 1 bigha, 13 chattaks, 43 sq. feet for the State Transport. The appellant claimed Rs. 3,50,000 inter alia for severance of the land acquired. In the month of September, 1962 the Government communicated to the appellant that the Government agreed that the claim put forward by the appellant under the clause "thirdly of sub-section (1) of Section 23 of the Act " is unreasonable and excessive.

4. The sanction of the Governor was therefor accorded to the acquisition of the entire premises 2, Gariahat Road, Calcutta under Section 49 (2) of the Act. Between the months of February and September, 1960, notices were issued to acquire a further area of 7 bighas, 4 cottahs 9 chattaks and 10 sq. feet. The premises were acquired. An award was made.

5. The principal contention of the appellant is that Section 49 (2) of the Act has no application in the case of acquisition of vacant land. The appellant contends that the land acquired in the present case was vacant. The State contended to the contrary. The materials on record support the contention of the State. The appellant submits that Section 49 (2) of the Act applies only where and with building is taken. Section 49 (2) of the Act is as follows : -

"If in the case of any claim under Section 23, sub-section (1), thirdly, by a person interested, on account of the severing of the land to be acquired from his other land, the appropriate Government is of opinion that the claim is unreasonable and excessive, it may, at any time before the Collector has made his award, order the acquisition of the whole of the land of which the land first sought to be acquired forms a part."

6. Land is defined in Section 3 (a) of the Act to include benefits to arise out of land and things attached to the earth or permanently fastened to anything attached to the earth. Therefore, land contemplated in Section 49 (2) of the Act may be land or land including building or part of a building.

7. Counsel for the appellant relied on the decision of this Court in State of Bihar v. Kundan Singh, (1964) 3 SCR 382 and extracted the observation at Page 394 of the Report (SCR) = (at p. 354 of AIR) that Section 49 (2) of the Act contemplates cases where land is acquired and it is shown to form part of a house. In short, the contention of the appellant is that if there is vacant land Section 49 (2) of the Act has no application. This is not only misreading the decision but also the relevant section.

8. In Kundan Singh s case (1964) 3 SCR 382 the question for consideration was whether the desire of the owner for the acquisition of the entire house under Section 49 (1) of the Act should be expressed before the award is made. In Kundan Singh s case (supra) the State acquired a plot of land which consisted of the main house and an outhouse with an open space. The owner of the property was not satisfied with the award. The owner contended that other lands and buildings contiguous to the land and building acquired which all belonged to the owner had not been acquired. As a res