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Rabari Mahadev Amra Vs. Prant Officer, Radhanpur - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtGujarat High Court
Decided On
Case NumberFirst Appeal No. 86 of 1974
Judge
Reported inAIR1979Guj192; (1979)0GLR769
ActsLand Acquisition Act, 1894 - Sections 31(2)
AppellantRabari Mahadev Amra
RespondentPrant Officer, Radhanpur
Appellant Advocate Kusum and; M. Shah, Advs.
Respondent Advocate J.U. Mehta, Asst. Government Pleader
Cases ReferredState of Punjab v. Smt. Harcharan Kaur
Excerpt:
.....raised by appellant - protest contemplated by second proviso to section 31 (2) need not be in writing and oral protest can be entertained - protest can be raised in application for withdrawal of amount if any application endorsed on receipt under which payment made - petition allowed. - - 1. a poor and ignorant agriculturist, who received the amount of compensation fixed under the award of 28th march, 1968, is sought to be denied due compensation in respect of his land acquired by the state government on the hyper technical ground that the protest under he second proviso to section 31(2) of the land acquisition act, 1894 (hereinafter referred to as 'the act') was not made in writing before he accepted the said amount. - provided also that no person who has received the amount..........284:'moreover an application for reference is not the proper document wherein to record such a protest. 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.' these observations do not go to show that the protest contemplated by the second proviso to section 31(2) must be in writing and an oral protest cannot be entertained. the observations merely indicate that the protest can be raised in the application for withdrawal of amount, if any such application is required to be given and can be endorsed on the receipt under which payment is made. the decision does not.....
Judgment:

1. A poor and ignorant agriculturist, who received the amount of compensation fixed under the award of 28th March, 1968, is sought to be denied due compensation in respect of his land acquired by the State Government on the hyper technical ground that the protest under he second proviso to Section 31(2) of the Land Acquisition Act, 1894 (hereinafter referred to as 'the Act') was not made in writing before he accepted the said amount. Section 31(1) provides that on making an award under Section 11, the Collector shall tender payment of the compensation awarded by him to the persons interested, entitled thereto according to the award, and shall pay it to them unless prevented by some one or more of the contingencies, mentioned in the next sub-section. Sub-section (2) next provides that if the persons interested do not consent to receive the amount of compensation awarded to them or if there be no person competent to alienate the land, or if there be any dispute as to the title to receive the compensation or as to the apportionment of it, the Collector shall deposit the amount of the compensation in the court to which a reference under Section 18 would be submitted, provided that any person admitted to be interested may receive such payment under protest as to the sufficiency of the amount. Then comes the next proviso With which we are presently concerned and it reads as under:-

'Provided also that no person who has received the amount otherwise than under protest shall be entitled to make any application under Section 18.'

It is the case of the respondent State that the amount awarded to the appellant under the award of 28th March 1968 was received without protest and, hence, the reference under Section 18 of the Act was clearly incompetent in view of the second proviso reproduced above. In order to examine the merit of this contention a few facts may be noticed.

2. The appellant was the owner of S. No. 507/1 of village Khimana admeasuring about 17 gunthas 8 Annas on the date of notification under S. 4 of the Act. In course of time notification under Section 6 of the Act was issued and the applicant was served with a notice ex. 45 dated 4th September 1967 under Section 9 of the Act for fixation of compensation in respect of the acquired land. On 28th March 1968 the award was pronounced fixing the compensation, in respect of the acquired land of the appellant at Rs. 241.50 inclusive of solarium. The appellant received this amount on 3rd April 1968 under the receipt ex. 46. There is no mention in this receipt ex. 46 that the appellant received the amount under protest. The appellant claimed a reference under Section 18 of the Act on 24th September, 1968 and the Assistant Collector, Radhanpur, made a reference to the District Court, Banaskantha at Palanpur as desired by the appellant. That reference was numbered as Reference No. 1/70 and was heard by the learned Assistant Judge, Banaskantha at Palanpur who dismissed the reference by his order dated 20th September, 1972 taking the view that the amount of compensation was not received by the appellant on 3rd April, 1968 under protest and, hence, reference was not competent in view of the second proviso to Section 31(2) of the Act. It is this view of the learned Assistant Judge which is assailed by the original applicant of reference No. 1/70 in appeal before this court.

3. It may at once be mentioned that the case of the appellant at the stage of evidence in the said reference was that before he received the amount in question on 3rd April, 1968, he had told the Mamlatdar, Kankraj, that he was not satisfied with the amount of compensation fixed under the award but the Mamlatdar informed him that he may claim additional compensation in the Palanpur Court and in the meantime accept the compensation amount fixed under the award of 28th March 1968. It is further the say of the appellant that he was told by the Mamlatdar, Kankraj, that his protest would be kept pending and, hence, he accepted the amount in question on 3rd April, 1968. Therefore, the case of the appellant in the reference was that he had not accepted the amount of compensation without raising a protest as to the sufficiency of the said amount and that the payment of Rupees 241.50 ps. was received on 3rd April, 1968 under protest by him. It is, therefore, the say of the appellant that the case is not governed by the second proviso to Section 31(2) of the Act and the learned trial Judge was wrong in concluding that as the protest was not made in writing, it could not be said that the amount was received under protest within the meaning of the second proviso reproduced earlier. It is further the contention of the appellant that the learned trial Judge was wrong in rejecting the evidence of the appellant and his two witnesses, Galabji Khodaji Ex. 39 and Meruji Shambhuji, Ex. 41 on the question that the amount of compensation was accepted by the appellant after raising a protest as regards its sufficiency. The learned trial Judge fixed the additional amount of compensation which he would have awarded to the appellant but for this technical bar at Rs. 2994.60 Ps. with interest at 4% per annum from the date of taking possession of the land till the date of payment.

4. The short question which arises for consideration is whether the protest to be lodged under the second proviso to S. 31(2) must be in writing or can be an oral one also. The proviso merely states that no person who has received the amount otherwise than under protest shall be entitled to make any application under S. 18 of the Act. Even the first proviso which entitles a person admitted to be interested to receive the amount of compensation determined under the award under protest as to its sufficiency does not provide that the protest must be reduced to writing. There is nothing in the second proviso to Section 31(2) that the person receiving the amount must receive the same under a written protest so as to be subsequently entitled to make a reference under Section 18 of the Act on the question of sufficiency of the amount awarded in respect of the acquired land. The learned Judge relied on a passage from V. G. Ramachandran's (3rd Edition) on the Law of Land Acquisition which reads as under:

'The mode of protest is generally by endorsing on the counterfoil of the cheque or the receipt taken by the Collector, that the payment is taken under protest. There must be something in writing indicative of the protest.' This observation merely states that generally the protest is recorded by endorsing on the counterfoil of the cheque or the receipt taken by the Collector the fact that the amount is accepted under protest. The subsequent sentence that there must be something in writing indicative of the protest merely deals with the recording of a protest made by the owner while accepting the amount of compensation. That observation does not mean that there cannot be an oral protest made at the time of accepting the amount fixed under the award. There is nothing in the statute to show that the protest must necessarily be in writing and if an oral protest is not only pleaded but also proved that would not be sufficient to remove the bar created by the second proviso to Section 31(2) of the Act. To lay down that the protest ought to be in writing is to read words in the statute that are not present. A person who accepts the amount without a written protest runs the risk of his reference being refused on the ground that it suffers from the statutory bar created by the second proviso to Section 31(2) of the Act. I am, therefore, of the opinion that the learned trial Judge was not right in holding that since the protest was not in writing, the statutory bar created by the second proviso to Section 31(2) was attracted and the reference was incompetent.

5. Mr. Mehta, the learned advocate for the respondent, invited my attention to two decisions in support of his contention that the protest ought to be in writing. In Suresh Chandra Roy v. The Land Acquisition Collector, Chinsurah AIR 1964 Cal 283, Banerjee, J. observed as under in Para 6 on page 284:

'Moreover an application for reference is not the proper document wherein to record such a protest. 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.'

These observations do not go to show that the protest contemplated by the second proviso to Section 31(2) must be in writing and an oral protest cannot be entertained. The observations merely indicate that the protest can be raised in the application for withdrawal of amount, if any such application is required to be given and can be endorsed on the receipt under which payment is made. The decision does not lay down an absolute proposition of law that an oral protest is not contemplated by the second proviso to Section 31(2) of the Act.

6. Mr. Mehta then relied on a decision of the Full Bench of the Punjab and Haryana High Court in State of Punjab v. Smt. Harcharan Kaur, AIR 1975 Punj & Har 66. In that case the Full Bench after considering the language of Sections 18, 20 and 31 observed that the policy of the legislature is clear from the collective reading of the said three sections that any person who has accepted the award is not entitled to make an application under Section 18 of the Act nor is he entitled to receive notice of any application that may have been made by some other person. It was then observed as under at page 71:

'Since Section 31(2), Second Proviso of the Act creates a statutory bar to a person who has accepted the compensation without protest from making an application under Section 18 of the Act, it is the duty of the court, if an objection is raised by the respondent, to determine whether the applicant has the right to make the application or not. If, he comes to the conclusion that the application had been made by a person who had accepted the award, he must throw out the reference without deciding it on merits. Such a decision will disentitle the applicant from claiming any enhancement in the amount of compensation awarded by the Collector.'

It is clear from these observations that what the court dealing with a reference under Section 18 of the Act is enjoined to do is to make an inquiry as to whether the amount of compensation was accepted by the applicant without protest i. e. whether the applicant had accepted the award without a demur and if the court comes to the affirmative finding on this question, it is bound to reject the reference in view of the statutory bar created by the second proviso to Section 31(2) of the Act. There is, however, nothing in this judgment to infer that their Lordships were of the view that the protest contemplated by the second proviso to Section 31(2) of the Act must be a written protest and an oral protest was not contemplated by the said proviso.

7. In view of the above, I am of the view that the learned trial Judge was not right in concluding that as the appellant had not lodged a written protest at the time of withdrawal of the amount, he was debarred from claiming additional compensation in a reference under Section 18 of the Act.

8. 9. [ xx xx xx ]

10. Appeal allowed.


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