1. The precise nature of the right to claim enhanced compensation under Section 18 of the Land Acquisition Act (hereinafter called the 'Act') and what exactly destroys such a right under Section 31 of the Act has to be considered in this case.
2. The petitioner's land was duly acquired by the Government and an award offering compensation to the petitioner was made by the Land Acquisition Collector under Section 11 of the Act. Under Section 12(1) of the Act, such an award is final except as there in after provided in the Act. Under Section 18(1) any person who has not accepted the award may, by a written application to the Collector, require that the matter be referred by the Collector to the Civil Court for the determination by that Court of his objections as to the amount of the compensation etc. within six weeks of the delivery of the award or of the compensation etc. within six weeks of the delivery of the award or the receipt of the notice of the award by him as the case may be. Under Section 19, the Collector shall make a reference to the Civil Court stating the objections raised by the applicant under Section 18. Pending such determination of the claim to enhanced compensation by the Civil Court, the Collector on making the award under S. 11 shall tender payment of the compensation awarded by him to the persons interested under S. 31(1) of the Act. Under. S. 31(2) if such a person shall not consent to receive the compensation, the Collector shall deposit the same in the Court to which a reference under Section 18 is submitted. Then follow the two provisos to Section 31(2) which are as follows and which have also to be read along with Section 18(1) of the Act:
'Provided that any person admitted to be interested may receive such payment under protest as to the sufficiency of the amount: Provided also that no person who has received the amount otherwise than under protest shall be entitled to make any application under S. 18.'
3. The effect of the above legal provisions may be stated as follows:-
(1) An award and the compensation offered by it are final unless an application within time for reference to the Civil Court is made by the interested person who does not accept the award including the compensation offered by it.
(2) A person who has not accepted the award may nevertheless receive the payment of compensation offered by the award under protest, shall be entitled to make any application under Section 18 of the Act.
4. Let us now apply the above law to the facts of the present case. The award was made on 13-6-1969. The claim of the petitioner for compensation under Section 9 and 10, of the Act was for Rs. 1,56,650.00 in addition to the usual solarium of 15 per cent. The amount offered as compensation by the award was only RS. 30,951.33 P. The petitioner thereforee made an application to the Collector on 10-7-1969 (Annexure A1) requesting that the compensation as award may please be paid to him early specifically stating as follows:
'I am accepting the payment under protest subject to my right for enhancement of compensation'
On 22-7-1969 the petitioner made an application to the Collector under Section 18 of the Act for making a reference to the District Court for enhancement of compensation specifically stating as follows:
'............that reference as required by law for enhancement of the amount of compensation award by the said award be made to the District Judge, Delhi.
On 24-7-1969 the compensation was paid to the petitioner who signed the receipt to the petitioner who signed the receipt of having received the same in the prescribed Form CC. It immediately accrued to the petitioner that, though his previous application dated 10-07-1969 and 22-7-1969 had already made it clear that he had not accepted the award and wanted the reference to be made to the Civil Court he had not written the words 'under protest' in the receipt. thereforee, immediately on the day following, namely, on 25-7-1969 he made an application to the Collector for permission to write those words to remove any doubt. The Collector however issued the petitioner a notice on 23-12-1969 to show cause why his application dated 22-7-1969 for reference to the Civil Court should not be rejected as he had accepted the payment of compensation without any protest. The petitioner again wrote to the Collector on 16-1-1970 as per Annexure A-6 that the circumstances under which the compensation was received by the petitioner were set out in his letter dated 25-7-1969, namely, the applications made by the petitioner on 10-7-1969 and 22-7-1969 already showed that the petitioner never intended to waive his right of reference to the Civil Court for enhancement of the compensation. By his order at Annexure A-7, the Collector however rejected the petitioner's application for reference to the Civil Court for enhancement of compensation mainly on the ground that the proviso to Section 31(2) of the Act had to be in the receipt itself and not in the application for payment of the compensation. Despite the petitioner's application dated 10-7-1969 thereforee the petitioner was deemed to have accepted the compensation without protest and he did not write the words 'under protest' in the receipt while accepting the compensation.
5. The above mentioned order is challenged as illegal by the petitioner by this petition filed under Art. 227 of the Constitution.
6. In my view the impused order is open to the grave objection that it fails to consider the real question at issue. Instead of considering whether the statutory right of the petitioner to apply under Section 18 could be said to have been barred or destroyed even after the application under Section 18 was made, it wrongly places a disproportionate emphasis on the question whether the protest by the petitioner was entered in the receipt itself or outside. It forgets that the acceptance of compensation without protest is only one of the ways in which his wright to apply under Section 18 would be barred. It also fails to see that the statute does not say that the protest must be entered in the receipt itself. Lastly it ignores the application made by the petitioner on 10-7-1969 for payment of compensation without prejudice to his right to apply under Section 18. The payment was made in response to that application and the application and the payment must be considered to form the same transaction. In that transaction, the protest was incorporated along with the receipt of the compensation with the result that the payment could only be viewed as accepted under protest.
7. According to the legal position analysed at the outset of this judgment, the petitioner had a legal right to the enhancement of the compensation offered to him by the award. He could be deprived of this legal right only in accordance with the provisions of the Act and not otherwise. Firstly, he may have lost the right if he had failed to make the application under Section 18 within the prescribed period of limitation. Secondly, he may have lost his right if he had received the compensation under the award, otherwise than under protest. Had he done so then he would have been barred from making the application for reference itself.
8. In the present case however the application for reference for enhancement of compensation was already made by the petitioner on 22-7-1969. The making of the said application on that date had not been barred either by limitation or by acceptance of the compensation otherwise than under protest. Wheat the Collector has virtually decided is that a valid application filed by the petitioner could be destroyed later by his acceptance of the compensation under the award. It is to be noted that this conclusion of the Collector is not based on any provision of the Act. It is for consideration thereforee whether on any general principles of law, such as waiver or abandonment of a statutory right, the application already made by the petitioner could be dismissed by the Collector for a cause which has arisen after the making of the application through the application when made was valid.
9. A waiver may be express or implied. First as well as the second provisos to Section 31(2) specify the only manner in which the petitioner could expressly waive his right to make an application under Section 18. They do not apply to the present case inasmuch as the petitioner did not receive the compensation under the award before the making of the application under Section 18. The impugned order can thereforee be supported, if at all, only on the ground of implied waiver. We must thereforee carefully examine the conduct and the intention of both the petitioner and the Collector in he present case. On the side of the petitioner, the application dated 10-7-1969 as well as the application dated 22-7-1969 both expressly stated that the petitioner was accepting the payment of compensation under protest while at the same time waiting the case to be referred to the Civil Court for enhancement of compensation.
In view of these express statements in writing, there is absolutely no ground on which any intention to waive the statutory right could be attributed to the petitioner. On 10-7-1969 and 22-7-1969 thereforee the petitioner was a person 'who had not accepted the award' within the meaning of Section 13(1). Both these applications were pending before the Collector on 24-7-1969 when the petitioner accepted the compensation. On the side of the Collector, it can be pointed out that the petitioner did not write the words 'under protest' in the receipt itself. Shri S.S. Chadha, learned counsel for the respondent argued that the words 'under protest' must be written on the receipt itself if the petitioner wanted to claim the benefit of the first proviso to Section 31(2) . He argued that the words 'receive such payment under protest' necessarily meant that at the time of the receipt of the money itself the petitioner must protest. I agree that the conduct and the intention of the petitioner to accept the compensation under protest must be made clear at the time of the receipt of the most cases. It is also true that in most cases, the words 'under protest' might be written on the receipt itself.
I am unable however to construe the first proviso to Section 31(2) to mean that in every case, the words 'under protest' must be written in the receipt itself and that unless this is done, the compensation would be deemed to have been accepted unconditionally. Such a construction would be open to the charge that it is made in vacuum. It ignores the context in which the first proviso by Section 31(2) stands. It is preceded by Section 18(1) under which the petitioner was a person 'who had no accepted the award'. It also ignores that the application for reference for enhancement of the compensation was already made by the petitioner under Section 18. It also ignores Section 12(1) under which the award was to be final 'except as hereinafter provided'. The words within inverted commas refer to all those provisions of the Act which prevent the award from becoming final and include the making of the application for reference under Section 18. There is no warrant for the extreme contention that the mere failure to write the words 'under protest' in the receipt under the first proviso to Section 31(2) would be sufficient to destroy the pre-existing facts that the petitioner had not accepted the award and the award had not become final against the petitioner because the petitioner had already made an application for reference under Section 18 of the Act.
In view of the applications made by the petitioner on 10-7-1969 and 22-07-1969 the continuing representation which the petitioner was making on 24-7-1969 at the time of the acceptance of the compensation was that he was accepting the compensation under protest and was at the same time pressing his application under Section 18. This continued state of his mind was further proved by his application dated 25-7-1969 explaining why the words 'under protest' were not written on the receipt. He has stated these facts on affidavit. The Collector has not filed any counter-affidavit denying these facts. The Collector has not come forward with the case that in fact the petitioner had by his conduct shown any intention of waiving his statutory right. In the absence of any reply from the Collector the sworn case of the petitioner must be accepted.
10. In Associated Hotels of India Ltd. v. Sardar Ranjit Singh, : 2SCR548 , the question was whether the landlord had consented to the subletting of the premises by the tenant. It was argued for the tenant that the term in the lease deed that the tenant was to use the premises for running a first class hotel implied a consent by the landlord to the Land and Development Officer that the premises were to be used for a first class hotel in which counters of air-lines and show-rooms of jewellery and curios were always provided, was not considered as an implied consent to subletting as the show-rooms could be provided without subletting. The decision of the Supreme Court shows that so long as the conduct of a person is not utterly inconsistent with the continuing possession of a statutory right by him it would not be taken to amount to an implied waiver. Before a person can be held to have lost his right by implied waiver, the conduct of such a person must be clearly inconsistent with the retention of such a right by him. The conduct of the petitioner in the present case is not only consistent with the possession of the right to make a reference under Section 18 but is utterly inconsistent with the theory of waiver of such a right by him.
11. Shri S. S. Chadha, learned counsel for the respondent relied upon the following decisions, which are however clearly distinguishable. In Mrs. S. Thomas v. Collector of Madras, Air 1958 Mad 186, the petitioner had unconditionally accepted the amount of compensation and subsequently applied for reference under Section 18. Her application deservedly failed inasmuch as on the date on which she accepted the compensation she had not indicated her non-acceptance of the award and the intention to apply for reference under Section 18. In that context her failure to enter a protest at the time of the acceptance of the compensation was directly covered by the provisos to Section 31(2) and operated as a bar to the making of an application under Section 18.
In Suresh Chandra Roy v. Land Acquisition Collector, : AIR1964Cal283 the petitioner had applied for reference under Section 18 on 18-7-1958. But he did not continue to show this intention when on 12-8-1958 he made an application for payment of compensation without reserving his right to make an application under Section 18 and without any protest. Again on 18-8-1958, the petitioner applied for payment of compensation. On 30-1-1959 his counsel received the compensation without protest. In view of this conduct, his old application on 18-7-1958 was not deemed to be sufficient to show an intention that the compensation was accepted by him under protest. Further, the Collector filed an affidavit specifically stating that the petitioner had received payment of compensation without protest. The petitioner did not deny this allegation which was thereforee deemed to be admitted by non-transverse. In every material circumstances, this case is different from the present case.
In K. Krishna Rao v. Land Acquisition Officer, Air 1960 Mys 264 the petitioner had accepted only the voucher but had not actually received the amount of compensation before he made an application before he made the application for reference under Section 18. It was held that he was not barred from making an application under Section 18. This case actually supports the petitioner in the present case in emphasising that the bar to make the application under Section 18 must arise before the application is made under second proviso to Section 31(2) and thereforee the petitioner in the present case also was not barred from making the application. Insofar as the decision in Suresh Chandra's case referred to above is relates must be made in the receipt for compensation itself, a later Division Bench decision of the same High Court negatives this proposition. In Md. Golam Ali Mins. v. Land Acquisition Collector, : AIR1969Cal221 the application for payment of compensation itself stated that the compensation was being received under protest. The receipt on the back of the application however did not use the words 'under protest'. In these circumstances, the acceptance of the compensation was held to have been 'under protest' even though these words were not used in the receipt itself.
12. For the above reasons the impugned order at Annexure A-7 discloses an error of law patent on the face of the record. It is thereforee quashed and the Land Acquisition Collector is directed to act upon the petitioner's application dated 22-7-1969 under Section 18 of the Act and to make the reference to the competent Civil Court under Section 18 of the Act. The petition is thereforee allowed with costs in the above terms.
13. Petition allowed.