1. An award No. 238 under the Land Acquisition Act, (hereinafter referred as 'the Act') was made on 17th March, 1972, in respect of the land in village Mataur. Chanan Singh (now deceased) had filed an application dated 12th April, 1972, under Section 18 of the Act, but the Assistant Collector had filed this application on the plea that the claimant had received compensation under the award on 17th March, 1972, without any protest. Thus in view of the provisions of Section 31(2) of the Act, his application was not forwarded to the District Judge, under Section 18 of the Act. Thereafter the claimant Chanan Singh filed Civil Writ Petition No. 1660 of 1978, in which this Court ordered on 6th Sept., 1978 that since the Collector had given no opportunity of hearing, the case should be decided after the claimant is given an opportunity of hearing. Consequently the claim of Chanan Singh was heard on 7th Mar., 1979 and he also produced five witnesses, whose evidence was recorded on the same day. No rebuttal was produced on behalf of the Punjab State. Meanwhile Chanan Singh claimant died on 15th August, 1979 and his heirs and legal representatives, who are the petitioners, were brought on the record. The learned Collector without discussing the evidence of the witnesses dismissed the application with the following observations:--
'4. The above mentioned witnesses deposed in their tutored statements that in spite of protest by the appellant, that Land Acquisition Collector did not write his protests. I have heard the arguments of the learned counsel Shri Iqbal Singh and have gone through evidence, but on seeing the record it is evident that the other persons who received compensation on 17-3-1972 under protest their protest is noted and words 'under protest' are written. Therefore, it is wrong that at that time it was not recorded. Hence in view of Section 31(2) of the Act, appellant's appeal is dismissed.'
2. Dissatisfied with the same the petitioners have come up in revision in this Court.
3. Learned counsel for the petitioners contended that the order of the Collector is not a speaking one, as the evidence produced by the claimant had not been considered at all. He further contended that the mere fact that the words 'under Protest' are not written by the Collector at the time of payment of the compensation on 17th March, 1972, that by itself does not prove that no protest was made. Moreover, there was no rebottle to the evidence produced by the claimant and in these circumstances the Collector has erred in dismissing the application. In support of his contention he referred to Sham Lal v. Ujagar Singh, 1979 Rev LR 560 ; Ram Sarup Basra v. Land Acquisition Collector, 1978 of India, AIR 1976 Delhi 83.
4. On the other hand learned counsel for the State argued that it is a question of fact whether the compensation was received under protest or not and the Collector had come to a conclusion that the compensation was not received under protest. Because from the record it is evident that the other persons, who received compensation on 17th March, 1972, under protest, their protest is noted, whereas since no protest was made on behalf of the claimant Chanan Singh, the same was not written on his receipt. In support of his contention he referred to Jaswant Singh v. State of Punjab, AIR 1972 Punj and Har 31 and State of Punjab v. Smt. Harcharan Kaur, AIR 1975 Punj and Har 66(FB).
5. I have heard the learned counsel for the parties at some length. From the order of the Collector it is quite evident that the evidence produced by the claimant has not at all been discussed. The mere fact that the words 'under protest' are not written at the time of payment of compensation to the claimant Chanan Singh will not prove that no protest was made. In Gian Chand Dhawan's case (AIR 1976 Delhi 83)(supra) it has been held that for determining whether the party has waived his fight to apply for a reference, the intention under which the party seems to have received the payment must be taken into account. The matter must be decided having regard to the actual payment, but also at a time antecedent to it. Thus where the application for payment clearly states that the payment was sought for under protest, the mere fact that the receipt did not sufficient to hold that the party had waived the right to apply for reference.
6. In any case the Collector has filed to discuss the evidence produced by the claimant Chanan Singh. In these circumstances, the order of the Collector is liable to be set aside.
7. In the Full Bench judgment of this Court in Smt. Harcharan Kaur's case (AIR 1975 Punj & Har 66)(supra) the question referred was 'can the Court after the reference has been made to it by Collector under Section 18 of the L. A. Act, 1894. Dismiss or decline the reference on the ground that the applicant was a person who had accepted the Collector's award by receiving, without protest the compensation amount determined by the Collector'. The answer to this question has been given in the affirmative. It has been held therein, in para. 10 thereof, that it is the duty of the Court to decide if an objection is raised by the State to determine whether the applicant had a right to make an application under Section 18 or not. If it comes to the conclusion that the application has been made by a person, who had accepted the award, it must throw out the reference without deciding it on applicant from claiming any enhancement in the compensation awarded by the Collector. Thus it is evident that the District Judge on a reference having been made under Section 18 of the Act, by the Collector, is competent to decide the matter as to whether the amount of compensation was received by the claimant under protest or not. Because in that situation the Proviso to Section 31(2) of the Act is attracted, which provides:--
'That no person who has received the amount, otherwise than under protest, shall be entitled to make an application Section 18'.
8. Thus from the facts and circumstances of the present case I feel that this matter should be decided by the District Judge, as a preliminary issue to whom the papers would be sent by the Collector under Section 18 of the Act.
9. Consequently the order of the Collector dated 17th July, 1981, is set aside and the case is sent back to him with the direction that the case be referred to the District Judge under Section 18 of the Act, who will decide the objection under Section 31(2) of the Act afresh. The evidence already led by the claimant before the Collector will be read as evidence before the District Judge as well because the State was fully represented there before the Collector and had cross-examined the witnesses. However, the State may be provided a further opportunity to lead rebuttal, if any, to the evidence of the claimant. The parties are directed to appear before the Collector on 12-4-1982.
10. There will be no order as to costs.
11. Petition partly allowed.