1. By his order dated October 10, 1969 the Additional district Judge, Delhi while dealing with an application under Section 18 of the Land Acquisition Act, 1894, on behalf of 16 claimants has decided a preliminary issue as to whether Kaniya (respondent No. 14 herein), who was one of the 16 claimants, had received payment without protest on the facts admitted by the parties. He decided the issue against the petitioners and held that Kanahiya was entitled to join in the said application.
2. The facts are that lands belonging to there respondent were acquired and the Collector made an award where under Kanhiya, respondent No. 14, ahd also to receive the compensation offered by the Collector. On December 12, 1962, Kanhiya made an application to the Collector to the effect that the would receive the payment as offered by the Collector but under protest. However, when Kanhiya actually received payment on January 22, 1963, he did not mention his protest on the receipt given by him at that time. It was, thereforee, contended on behalf of the petitioners that Kanhiya was not entitled to be a party to the application under Section 18 of the land Acquisition Act for enhancement of compensation which had been forward to the Additional District Judge for disposal.
3. It cannot be disputed that the award of the Collector (is) tantamount to an offer of payment. Offers, ordinarily made, may either be accepted in which case a contract comes into existence or rejected in which case on contract comes into existence. A special provisions has, however, been made in Section 31 of the said Act with regard to payment of amounts awarded by the Collector. Sub-section (1) of S. 31 of the said Act requires the Collector to tender payment of the compensation awarded by him to the person interested or entitled thereto according to the award. This is the offer by the Collector. It is open tot he person to whom the offer is made not to consent to receive it in which case and by virtue of sub-section (2) of S. 31, the Collector is to deposit the amount of compensation in the court to which a reference under Section 18 would be submitted. However, a departure is made from the ordinary law of contract by the first provision to sub-section (1) of S. 31 of the said Act. This proviso entitles any person to whom such tender of payment is made to receive the payment under protest as to the sufficiency of the amount. Not with standing the receipt of the amount tendered by the Collector under protest, the person to whom the amount is tendered remains entitled to ask for a reference under Section 18 of the Land Acquisition Act to the Court. However, the second proviso to sub-section (2) of S. 31 of the said Act creates a bar in the way of a person to whom such payment is tendered and who receives it otherwise then under protest in making an application under Section 18 of the said Act. This second proviso is in these terms:--
'Provided also a that person who has received the amount otherwise than under protest shall be entitled to make any application under Section 18.'
4. The short question in this revision petition is as to whether the protest must be made at the time of actually receiving the payment or it can be made at any earlier stage also. The section does not in so many words says, as it could have said, that the protest must be simultaneous with the receipt of the payment. Mr. Francis, learned counsel for the petitioners, urges that that is how the second proviso to sub-section (2) of S. 31 of the said Act has been interpreted in various authorities.
5. The first case to which reference is made is Suresh Chandar Roy v. Land Acquisition Collector, Chinsurah : AIR1964Cal283 , which was also cited before the Additional District Judge. It is was held in this case by a learned Single Judge of the Calcutta High Court that the protest ought to be made, firstly, in the application for receiving the disputed amount of compensation, if any such application is to be at all made and must be recorded in the receipt granted showing that the disputed amount of compensation money was accepted under protest. With respect I find it difficult to agree with the conclusion arrived at because I do not see any warrant for it in the language employed in the second proviso referred to above. All that the second proviso requires is that there should be a protest and that the amount should not be received otherwise than under protest. If upon the offer being made by the Collector of tendering payment as determined by him, the person concerned states in an application as was stated in the present case that he is prepared to receive it but only under protest, I do not see any further requirement for him to record the protest also upon the receipt at the time when he actually receives the payment.
6. Even the Calcutta High court did not support to the conclusions of the learned single Judge in Suresh Chandra Roy's case, : AIR1964Cal283 . By a Division Bench of that Court in the Case of Md. Golam Ali Mina v. Land Acquisition Collector : AIR1969Cal221 the observations in the earlier Calcutta case were held to be obiter. The Division Bench were considering a case whether it was only in the application under Section 18 of the said Act that it had been mentioned that the applicant were prepared to accept amounts awarded under protest and payment were made in pursuance of this application and receipts were given on the back there of without mentioning the words 'under protest'. It was held that the receipts must be related to the application themselves and must be linked with the same and that it could not be held that the amount had been received without protest so as to disentitled the applicants to apply for references under Section 18.
7. Mr. Francis has also relied upon the case Sardara Singh v. State of Punjab 1970 Cur Lj 68; S. M. A. Somasundaram Mudaliar v. District Collector Chittoor, : AIR1967AP126 and Mrs. S. Thomas v. collector of Madras Air 1958 Mad 186. In none of these case was any protest made at any time after the tender of the amount and title the time of receipt of the amount. These cases, thereforee, earlier fall within the second proviso to sub-section (2) of Section 31 of the said Act.
8. Another case upon which Mr. Francis relies is the case of Smt. Kaliash Devi v. State of Haryana Air 1971 P&H; 353 where the learned Judge relied upon the aforesaid decision in : AIR1964Cal283 , holding that the protest must be recorded in the application if any for the amount as well as in the receipt of this amount. To the same effect is the case of Jaswant Singh v. State of Punjab, .
9. In my view the decision of the Calcutta High Court in the case : AIR1969Cal221 , is with respect, correct. The order of the Additional District Judge is, thereforee, correct. This revision petition is, thereforee, dismissed but with on order as to costs.
10. Petition dismissed.