Acceptance of a cheque in satisfaction of the amount due constitutes valid payment, and if no protest is made at the time of acceptance, no application can be made under S.20 of the Kerala Land Acquisition Act.

In these two Original Petitions a common question arises and so they are being disposed of by a common judgment. The prayer in these Original Petitions is to direct the respondent-Land Acquisition Officer to refer the ma tier to the court for fixing the compensation under S.20 of the Kerala Land Acquisition Act.

2.In O.P.No.2720/90 an award was passed and the petitioners received the cheque for the amount on 26-8-78. It was encashed on 29-8-78. They filed an application evidenced by Ext.P3 on the same day in which they made a protest regarding the compensation amount and requested the Land Acquisition Officer to refer the matter to court. No order on the petition has so far been communicated to them and hence the Original Petition is filed for a direction to the Land Acquisition Officer for referring the matter to the court.

3.In O.P.No.2842/90, in pursuance to the award the petitioner received the cheque for the amount due under the award on 6-5-78. Application for reference under S.20of the Kerala Act was sent on 9-5-78. In that application he has stated tha<< he received the amount under protest and that he is not satisfied with the award and the matter may be referred to the court. The application was sent by registered post on 9-5-1978 and it was received in the office on 10-5-78. In this case also no order has so far been communicated to the petitioner and the prayer is for a direction to refer the matter to court under the Land Acquisition Act.

4. Learned Government Pleader took notice and placed the files before me. It is her contention that in the application for issuing of a cheque for the amount due under the award there was no protest. Nor did the petitioners make any protest when they received the cheque for the amount due. lit these circumstances the case of the Government Pleader is that the amount was received without protest and that the subsequent protest made in the application for reference will not serve the purpose. She relied on the second proviso to S.33(2) of the Act to contend for the position that the petitioners shall not be entitled to make any application under S.20.

5. The question for consideration is whether the petitioners are precluded from making an application under S.20 on the ground that they have received the amount due under the award otherwise than under protest. The second proviso to S.33(2) reads as follows: -

"Provided further that no person who has received the amount otherwise than under protest shall be entitled to make any application under S.20:"

Counsel for the petitioners contended that the mere acceptance of a cheque will not amount to payment and that it is enough if they make a protest before actual payment is made. According to them it is enough if they make a protest before encashing the cheque and it is not necessary that when the cheque was received it should be received under protest. It is their case that the mere tendering of a cheque will not amount to payment so as to disentitle them under the second proviso to S.33(2) from making an application under S.20. In support of this contention they relied on two decisions of the Calcutta High Court, namely Brojendra Coomarv.Sirish Chandra (AIR 1954 Cal.459) and N.T. Works v. Amala Bala Dassi (AIR 1969 Cal. 12). In both the cases the question was as to whether the arrears of rent paid by means of cheque is a valid tender of payment. In this context in AIR 1969 Calcutta 12 it was observed as follows: -

"It is well known that a cheque is never a valid tender unless it is accepted by the payee as a valid tender of payment."

From the above decision it is clear that the giving of a cheque is a valid payment if it is accepted as payment by the creditor.

6. The effect of payment of money due by means of a cheque was elaborately considered by the Bombay High Court in Kirloskar Bros. Ltd. v. Commr. of Income tax, Bombay (AIR 1952 Born. 306). It was observed in that decision that a cheque is looked 'upon as a payment if a cred