An application seeking a reference under S.18 of the Land Acquisition Act is not maintainable, unless the applicant proves that he had received the payment under protest. It would, therefore, follow that if the compensation was received without protest, application seeking a reference under S.18 will not be maintainable.

A.V. Savant, C.J.

Heard Mr. Philip Mathew, learned Counsel for the petitioners and Mr. Mohamed Youseff, learned Additional Advocate General for the respondents.

2. These petitions have been placed before us pursuant to the order of reference dated 1st August, 2000 passed by a Division Bench. The questions of law, which arise for our determination, are as under:

(i) Whether i n the scheme of the provisions of S.31 r/w S.18 of the Land Acquisition Act, 1894 (for short, the Act) is an application for reference maintainable under S.18 of the Act, without the applicant proving that he had received the payment under protest as to sufficiency of the amount?

(ii) What is the stage at which the protest contemplated by the first two provisos to S.31(2) has to be lodged? Can such a protest be lodged subsequently, after receiving the payment without protest?

(iii) If the acceptance of compensation under protest is the sine qua non (as required by the second proviso to S.31(2)) to the making of an application under S.18, can such a protest be made orally or whether it is necessary that such protest should always be in writing?

(iv) If there is neither a written protest nor even an oral protest (assuming that oral protest is permissible) made at the time of receiving payment, is the mere making of an application under S.18 of the Act, by itself, sufficient to infer that the claimant must be deemed to have accepted the amount under protest so as not to disentitle him of the remedy under S.18 of the Act? In other words, can an oral protest be inferred to have been made merely because, subsequently, an application for reference has been made under S.18 of the Act?

3. These petitions were initially heard by a learned Single Judge. He referred them to a Division Bench. His order refers to the apparent conflict in the observations in two decisions of the Apex Court viz., (i) Ajit Singh v. State of Punjab ((1994) 4 SCC 67) (for short, Ajit Singh's case) and (ii) Wardington Lyngdoh v. Collector, Mawkyrwat (1995) 4 SCC 428 = AIR 1995 SC 2340) (for short, Wellington's case). The observations made in Wardington's case have been reiterated in a later decision in Land Acquisition Officer v. Shivabai ((1997) 9 SCC 710) (for short, Shivabai's case).

4. When the petitions were heard by the Division Bench, both the learned counsel invited the Court's attention to two decisions of this Court and contended that, apparently conflicting views have been expressed therein. Similar questions are involved in a large number of cases pending in this Court under the Act. The apparent conflict is as under.

5. In Writ Appeal No. 599 of 1994 decided on 6th August, 1998 (arising out of O.P.No.1183/93) Special Tahsildar, Land Acquisition v. Kariyamparambil Raghavan (for short, "K. Raghavan's case"), a Division Bench of this Court referred to the decisions of the Apex Court in (i) Wardington's case (supra) and (ii) Shivabai's case (supra) and came to the conclusion that an oral protest was necessary before the claimant could make an application under S.18 of the Act. A perusal of the said two decisions of the Apex Court would show that no person who had received the amount, otherwise than under protest, would be entitled to make an application under S.18 of the Act. In other words, the receipt of the amount under protest is a condition precedent for making an application under S.18.

6. The other view taken by another Division Bench of this Court is in Kannan v. Land Acquisition Officer (1999 (2) KLT 643) (for short, "Kannan's case"), where the Division Bench preferred to rely upon the earlier decision of the Apex Court in Ajit Singh's case (supra). It was held in Kannan's case that though the plea set up by the claimant that he had received the amount under oral protest was denied by the respondent State, the mere fact that respondent had denied the fact that claimant had lodged any protest at the time of receiving payment, did not inspire confidence in the Court, having