Receipt of amount of awarded compensation without protest.

The only question that arises for consideration in this writ petition, is whether the petitioner received the compensation amount on 3rd November, 1966, under protest or not. On the basis that he received the amount under protest, the petitioner has filed this writ petition asking for the issue of a writ of mandamus directing the respondent to make a reference under section 18 of the Land Acquisition Act, 1894, (hereinafter referred to as the Act).

2. A land belonging to the petitioner was acquired under the Act and an award was passed on 26th September, 1966. From the records it is seen that the petitioner received the ‘C ‘form cheque on 3rd November, 1966. On 28th November, 1966, the petitioner wrote to the Acquisition Officer, stating that the compensation was low and that a reference might be made under section 18 of the Act. There was no reply to that communication. The petitioner, through his Advocate, repeated the request on 22nd April, 1968 stating that if the matter was not referred, he would be compelled to take legal action. The respondent received the notice on 23rd April, 1968 and sent a reply on 1st July, 1968, stating that no reference would be made because the amount had been received by the petitioner without protest. It is in these circumstances, the writ petitioner has come forward with this writ petition, alleging that he received the amount only under protest. The respondent disputes the fact that the petitioner received the amount under protest.

3. The relevant records were placed before me, and a perusal of the same shows that the petitioner received the ‘C ‘form cheque on 3rd November. 1966, without indicating any protest. On 28th November, 1966, the petitioner wrote a letter in his own hand, stating that the amount paid to him was low and that the matter must be referred to Court under section 18 of the Act. It is significant that in that letter he did not say that the amount was received under protest. It is therefore clear that it is only subsequently, after realising the mistake, the petitioner stated that he received the amount only under protest. The two documents viz. the receipt signed by him on 3rd November, 1966 and the letter dated 28th November, 1966, which are silent about the alleged protest, clearly belie his present version. 1 am satisfied that the petitioner received the amount without any protest.

4. On behalf of the petitioner, reliance was placed on a decision of this Court in Kamalam v. The Special Tahsildar1, in which the scope of the protest under section 31 of the Act was considered. Veeraswami, J., as he then was. who delivered the judgment on behalf of the Bench, observed at page 690 as follows:

“Another point argued by the learned Government Pleader in A.S. No. 278 of 1961 is that two days after the service of the notice, the appellant received compensation but without protest. No doubt section 31 (2) of the Act contemplates by one of its provisos that any person who is not satisfied with the quantum of compensation awarded may receive it under protest. But this does not mean that if any amount awarded is received as compensation without protest, the claimant concerned is denied his right under section 17 to ask for a reference. We are unable to hold that the proviso is intended to have effect as a kind of estoppel against the claimant concerned exercising his right under section 17”.

It would be seen from the above passage that the attention of the learned Judge was drawn only to proviso (1) to section 31 (2) of the Act, which reads:

“Provided that any person admitted to be interested may receive such payment under protest as to the sufficiency of the amount.”

It is this proviso that was considered by the learned Judge and not the second proviso, which reads:

“Provided also that no person who has received the amount otherwise than, under protest shall be entitled to make any application under section 18”.

5. It is obvious that the scope of the proviso did not arise for conside