B.N. Banerjee, J.
1. An area of land belonging to the petitioner was acquired under the provisions of the Land Acquisition Act and two sums of money, namely, Rs. 57,236.65 nP. and Rs. 33.413,25 nP. ware awarded in favour of the petitioner. On July 9, 1958 the petitioner was informed that he was at liberty to withdraw the amounts on August 18, 1958. either himself or through an authorised agent from the Land Acquisition Collector's Office. On receipt of the above notice, the petitioner made an application, on July 18, 1958, praying that a reference be made to Court for determination of the amount of compensation. In the said application the petitioner, inter alia, stated that he would receive the compensation as awarded under protest on the date notified.
2. Thereafter, on August 12, 1958, the petitioner filed an application before the Land Acquisition Collector for withdrawal of the compensation money and therein authorised Sri Phanindra Nath Chakrabarty to receive the compensation money on his behalf. Again, on August 18, 1958, the petitioner prayed for issue of two bank drafts for the amounts of compensation in his favour. On January 30, 1959, Sri Phanindra Nath Chakrabarty received the compensation money in the form of bank drafts and duly executed two receipts therefor. Neither in the applications dated the 12th and 18th August, 1958, nor in the receipt dated 30th January, 1959, was there any repetition of the protest under which the petitioner was prepared to accept this compensation money. Thereafter, the petitioner received a letter, dated January 2, 1962, to the following effect:
'With reference to your petitions dated 18-7-58, I am to inform you that the reference under Section 18 is barred under Section 31(2) of the L.A. Act. Section 31(2) of the Land Acquisition Act referred to in the letter reads as follows :
'If they shall not consent to receive it, 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:
Provided also that no person who has received the amount otherwise than under protest shall be entitled to make any application under Section 18:
Provided * * * *' Aggrieved by the order, the petitioner moved thisCourt, under Article 226 of the Constitution, prayingfor a Writ of Mandamus directing the respondentto mate a reference under Section 18 of the LandAcquisition Act and obtained this Rule.
3. The Special Land Acquisition Collector filed an affidavit-in-opposition and therein stated as follows :
' * * * I say that the petitioner had not seated in his subsequent applications dated the 12th August, 1958, 18th August, 1958 and 2oth Feb. 1959 for the issue of the Bank Draft, that the payment of compensation would be accepted under protect nor was it so mentioned in the receipt given by the petitioner's authorised agent.
* * * I submit that the non-mention of the clause 'Under Protest' in those subsequent applications would amount to waiver of the petitioner's right to accept payment of compensation under protest and as such the petitioner is estopped from challenging the order of the L. A. Collector refusing to make the reference.'
The petitioner filed an affidavit-in-reply and therein controverted the statement made in the affidavit-in-op position in the following language.
'That this deponent says and submits that the petitioner's subsequent petition on 12-8-1958 following the said petition of reference was obviously with reference to the said undertaking and so also the petition dated 18-8-7958 and the letter of Authority dated 30-1-1959. * * *
* * * This deponent says and submits that the allegations that there was a waiver on the petitioner's part and he is estopped from challenging the order of the Collector refusing to make the reference is neither true in fact nor proper in law.'
4. Almost under similar circumstances, or similar point arose for consideration before Sinha, J., in Civil Rule 1925 of 1957, Atul Kumar Bhadra v. State of West Bengal (unreported) and His Lordship decided the point in the following manner :
' * * * On or about the 9th May, 1956, the petitioner through his pleader accepted the amount awarded without any protest. It appears that he made an application stating that the amount may be paid to him, 'under protest', but when it came to the withdrawal of the same, this was done unconditionally and not under any protest. As I said, it was withdrawn by Satyendra Nath Das, pleader for the petitioner, and there is an unconditional receipt by the pleader on the record. Now under the second proviso to Section 31(2) of the Land Acquisition Act, no person who has received the amount awarded otherwise than under protest shall be entitled to make any application under Section 18.
Mr. Dutt appearing for the petitioner states that the application was for the money to be paid under protest and therefore the receipt by the pleader should also be taken to be under protest. I am unable to accept this argument. The simple fact that the petitioner made an application for payment under protest docs not mean that the authorities were willing to pay him under such circumstances. 'It is the receipt of the money that is to be looked into for the purpose of seeing whether the payment was received under protest or not. In any event, the matter is placed beyond controversy, because in the affidavit-in-opposition herein affirmed by Abani Mohan Kushari, the Collector of Hoogly, on the nth February, 1958, he has said specifically in paragraph 8 thereof that the petitioner received payment of the award money without protest, on or about the 10th May, 1956 by a refund order. To this statement of fact, there has been filed no affidavit-in-reply and there I must take it that this is admitted.'
(Underlined (here in ' ') by me for emphasis)
5. Mr. Shyama Charan Mitter, learned Adv-o-rate for the petitioner, contended that in the un-reported decision above referred to Sinha, J., mainly proceeded on the affidavits filed in the case and since the statement in the affidavit-in-opposition to the effect that the compensation money had not been accepted under protest was not controverted by an affidavit-in-reply, His Lordship arrived at the finding that the compensation had been accepted without protest. Mr. Mitter pointed out that in the instant case tbe statement that the protest by the petitioner had been waived was very much controverted in the affidavit-in-reply and that made the present case distinguishable from the unreported decision by Sinha, J. In my opinion, Mr. Mitter is not correct in his reading of the judgment of Sinha, J., in the unreported case. His Lordship referred to the affidavits as an additional ground in support of his conclusion that the money had not been received under protest. He relied principally on the receipt for payment of money which was an unconditional receipt. I, therefore, bold that the present case is not in any way distinguishable from the unreported decision above referred to.
6. 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. Since the petitioner failed to receive the compensation money under a properly recorded protest I am disinclined to interfere in this matter.
7. The Rule is discharged.
8. There will be no order as to costs. Civil Revision Case 155 (W) of 1962.
9. The same order as made in Civil Revision Case 154 (W) of 1962 will govern this rule also.