JUDGMENT
Heaton, J.
1. A certain portion of land situated near the Santa Cruz Station was notified under the Land Acquisition Act to be acquired for the Railway. The owners of this land took advantage of the provisions of Clause (1) of Section 49 of the Land Acquisition Act and expressed their desire that the whole should be taken and not a part. The declaration issued under Section 6 had been of a part only. There is no dispute now that the owners acted rightly in this way and that they were entitled to have the whole and not the part acquired. We are only concerned with what followed. The Collector informed the owners and claimants that he accepted the claimants’ statement as a declaration of the wish of the parties that the whole premises should be acquired. He said that he would act accordingly and would acquire the whole and that there was no necessity for Government to declare its intention of acquiring the whole. He then proceeded to make an award which was objected to by the claimants and the matter was referred to the Court. Before the Court, in addition to objections relating to the amount of compensation, the claimants alleged that the whole procedings were ultra vires, because there had never been any declaration under Section 6 of the Act relating to the area of land which had been taken up.
2. The Assistant Judge who disposed of the matter held that this objection was made out and was a perfectly good objection in itself, but held that it had been waived by the conduct of the claimants.
3. Both points have been argued before us, that is, first, whether the proceedings are invalid or not and, secondly, whether there has been a waiver by the claimants. I think the proceedings are invalid and briefly for this reason. The Government have no right whatever and no power against the wishes of the owner to take this land except as provided by the Land Acquisition Act. Here they have taken the claimants’ land without the declaration required. That seems to me to be fundamentally and absolutely wrong. An argument was advanced as to whether Section 49 did not, by its terms, imply that the notification of the whole might be dispensed with although the whole was to be acquired, provided that there had been a declaration regarding the part. I will not spend time in discussing the phraseology of this section, but will content myself with expressing the opinion at which I have arrived after carefully reading it. My opinion is that Section 49 confirms the view that in a case of this kind acquisition or rather the taking up of land without a declaration relating to the land taken is absolutely illegal. I feel no doubt, therefore, that the acquisition was contrary to law and that the whole of the proceedings beginning with the Collector’s award are bad, and must be set aside.
4. That there is no waiver I feel equally sure about. I really am unable to follow the reasoning of the Assistant Judge who arrived at the conclusion that there was a waiver. To begin with, I doubt whether there could, in any circumstances, be a waiver in a case of this kind. I do not think that an owner of land could waive the objection that the acquisition by Government was illegal. If it is illegal, it is so and cannot be made legal by the silence of the claimants, although, of course, if the claimants had accepted the compensation without objection, the illegality would never come to notice or it may be that there would then be an acquisition by agreement and not under the Act. Moreover, I do not think that even if there could be a waiver in this kind of case that there has been a waiver in this particular case. The evidence that has been recorded, so far as it has been brought to our notice, does not show that the claimants made up their minds to forego an objection which it was within their power to raise. The evidence does not show when it first occurred to them that this objection existed. The law does not show that they were under any obligation to take the objection until the matter came before the Court. The proceedings certainly do show that the Collector was in no way misled by the claimants. It was he who, I presume, on his reading of what the Land Acquisition Act provides, came to the conclusion that no further declaration was necessary although the claimants expressed their desire that the whole and not a part of the premises should be acquired. I am unable, therefore, to see that there are in this case the essential elements to constitute the waiver.
5. I think the order of the Court, therefore, must be that the whole of the proceedings including the award made by the Collector be set aside and it will be for the parties to determine for themselves how they are to extricate themselves from the very curious position in which they now find themselves.
6. The appellants have also taken objection to the amount of compensation awarded by the lower Court, but this is a matter which, of course, we have not dealt with.
7. The appellants must have their costs in both Courts, because they succeed in this appeal.
Shah, J.
8. I concur.
