S.R. Das Gupta, C. J.
(1) This is an application for a writ of mandamus directing the Land Acquisition Officer, Coondapur Sub-Division, District South Kanara, to make a reference under S. 18(1) of the Land Acquisition Act. The matter arises in this way:
(2) Some of the petitioner's lands in Alpe village near Mangalore Town were acquired under the Land Acquisition Act. The petitioner's case is that he could not appear before the Sub-Divisional officer at the time of hearing of this matter as he had no notice of the said hearing. On 10-7-1956 an award was passed by the Land Acquisition Officer. On 31-7-1956 notice of the passing of the award was served on the petitioner under S. 12(2) of the Land Acquisition Act.
Along with that notice an intimation was given to the petitioner that Code Form 'C' cheque for the compensation amount due to him will be sent to him through the Thasildar, Mangalore and he was requested to receive payment at the District Treasury, Mangalore, within 3 days from the date of receipt of the cheque failing which the compensation amount would be transferred to 'Revenue Deposit' and no interest would accrue thereafter. After this intimation was given and on 2-8-1956 a 'C' Form cheque was actually sent to the petitioner. The petitioner, however, did not receive payment from the Treasury Office.
On 16-8-1956 the petitioner made an application asking the Land Acquisition Officer to refer a case under S. 18 of the Land Acquisition Act to the Sub Court, Mangalore. That application was refused and all that was stated in the said order of refusal was that the petitioner is not entitled to make an application under S. 18 of the Land Acquisition Act under the rules. From the said order of dismissal it is not clear as to what the precise reason was for which the application was so refused. It is under these circumstances that the present petition has been filed for a writ of mandamus as mentioned before.
(3) The only ground raised before us by the learned Government Pleader appearing for the State in support of this order is that the petitioner must be deemed to have received payment of the amount of compensation and he did so without any protest. The learned Government Pleader referred us to the second proviso to sub-s. (2) of S. 31 which says that no person, who has received the amount otherwise than under protest, shall be entitled to make any application under protest, shall be entitled to make any application under S. 18. He contended that the receipt of the cheque without protest amounts to receiving the amount of the compensation.
That being so, the learned Government Pleader urged that the petitioner is debarred under the said proviso from making any application under S. 18. I am unable to accept this contention. What has to be seen is whether or not the petitioner has received the amount otherwise than under protest. The question of protest would only arise if the amount was received. I am unable to hold in this case that the petitioner received the amount. What was sent to him was only a cheque in 'C' Form. The petitioner on the strength of that cheque could no doubt receive the money from the Treasury Office but he did not do so.
The amount receivable is still lying with the Government and the last portion of the order passed by the Land Acquisition Officer intimating that if the payment is not received within three days the amount will be transferred to some other department and no interest would be payable shows that the amount is still intact and the petitioner can still receive the same. The cheque in question merely amounts to an authority issued upon the Treasure Office to pay the amount of compensation to the petitioner. It is nothing more than that.
It cannot amount, in my opinion, to payment. That being so, the contention of the State on this point cannot be upheld. The petitioner is, in my opinion, entitled to ask the Land Acquisition Officer to make a reference under S. 18. it has not been disputed before us that if the Land Acquisition Officer refuse to make a reference, a writ of mandamus can be issued by this Court to compel him to do so.
(4) The result, therefore, is that this petition succeeds and a writ of mandamus be issued directing the Land Acquisition Officer to refer the case to the Sub-Court, South Kanara, Mangalore, under S. 18(1) of the Land Acquisition Act. The petitioner will get his costs of this petition. (Advocate's fee Rs. 100/-).
(5) Hombe Gowda, J.
(6) I agree.
(7) Petition allowed.