S.N. Andley, C.J.
(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 apreliminary issue as to whether Kanhiya (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 Kanhiya was entitled to join in the said application.
(2) The facts are that lands belonging to the respondents were acquired and the Collector made an award whereunder Kanhiya, respondent No. 14 , had also to receive the compensation offered by the Collector. On December 12, 1962, Kanhiya made an application to the Collector to the effect that he 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 forwarded to the Additional District Judge for disposal.
(3) It cannot be disputed that the award of the Collector tentamounts 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 no contract comes into existence. A special provision 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 section 31 of the said Act requires the Collector to tender payment of the compensation awarded by him to the persons interested or entitled thereto according to the award. This is the offer by the Collector. It is open to the person to whom the offer is made not to consent to receive it in which case and by virtue of sub-section (2) of section 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 proviso to sub-section (1) of section 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. Notwithstanding 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 referenc under section 18 of the Land Acquisition Act to the Court. However, the second proviso to sub-section (2) of section 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 than under protest in making an application under section 18 of the said Act. This second proviso is in these terms :-
'PROVIDEDalso that no 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 say, 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 is how the second proviso to sub-section (2) of section 31 of the said Act has been interpreted in various authorities.
(5) The first case to which reference is made is Suresh Chandra Roy v. The Land Acquisition Collector, Chinsurah : AIR1964Cal283 which was also cited before the Additional District Judge. It was held in this case by a learned Single Judge of the Calcutta High Court that a 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 Courtldid not support the conclusions of the learned Single Judge in Suresh Chandra Roy's case. By a Division bench of that Court in the case Md. Golam Ali Mina and another v. Land Acquisition Collector and another : AIR1969Cal221 the observations in the earlier Calcutta case were held to be obiter. The Division Bench were considering a case where it was only in the application under section 18 of the said Act that it had been mentioned that the applicants were prepared to accept amounts awarded under protest and payment were made in pursuance of this application and receipts were given on the back thereof without mentioning the words 'under protest'. It was held that the receipts must be related to the applications 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 disentitle the applicants to apply for references under section 18
(7) Mr. Francis has also relied upon the cases Sardara Singh and another v.State of Punjab (1970 Current Law Journal 6%):(')S.M.A. Somasundram Mudahar v. District Collector Chitteer and another : AIR1967AP126 and Mrs. S. Thomas v. The Collector of Madras A.I.R. 1953^Mad 186. In none of these cases was any protest made at any time after the tender of the amount and till the time of receipt of the amount. These cases, thereforee, clearly 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. Kailash Devi and another v. State of Haryana and another A.I.R. 1971 Punj & Har 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 for 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 reported in : AIR1969Cal221 is, with respect, correct. The order of the Additional District Judge is, thereforee, correct. This revision petition is, thereforee, dismissed but with no order as to costs.