1986 Supreme(MP) 513

IN THE HIGH COURT OF MADHYA PRADESH
B.C. Varma, J.
Ghasiram – Petitioner
Versus
State of M. P. Respondent
C. R. No. 544 of 1985 (J)
Decided On : 02-04-1986

Headnote:(1) Land Acquisition Act, 1894 – S. 78 – reference under – payment of compensation not received under protest – reference cannot be claimed.

       (2) Waiver – unqualified acceptance of award – amounts waiver for reference.

       (3) Civil Procedure Code, 1908 – S. 115 – order refusing to refer the case under S. 78 of L.A. Act – revisable by the High Court.

        Short Note

       1. The applicants in all these revision applications ale persons whose lands have been compulsorily acquired. They submitted their claims before the land Acquisition officer during proceedings for determination of compensation. The Land Acquisition officer after some enquiry offered certain amount as compensation to these applicants for compulsory acquisition of their land. After receipt of the compensation, all of them applied to the Collector for making a reference to the Court under section 18 of the Land Acquisition Act. These applications have been rejected by the impugned order on the ground that at the time of receiving the compensation the applicants received the compensation without any protest and, therefore, are not competent to any reference to the Court to obtain further compensation.

       Held: Section 18 of the Land Acquisition Act provides for a reference to the Court for the purpose of determination of compensation. It says that any person interested who has not accepted the award (underlining is mine) may, by written application to the Collector, require that the matter be referred by the Collector for the determination of the Court... From a bare reading of this provision it is manifest that the person interested and entitled to ask for a reference to the Court must not have accepted the award. Put it in the affirmative, it will mean that one who has accepted the award is not entitled to a reference to the Court. The underlying principle is that the person interested who has waived his right for a reference by unqualified acceptance of the award, is not competent to ask for a reference Whether a party has so waived his right to apply for a reference, it is pertinent to look at the intention with which the party received the compensation amount. The conduct of the party at the time of receiving the amount as also prior to it must be seen. It bas always been the view of the Courts that where a party receives the amount of compensation under protest, it cannot be said to have waived his right to apply for a reference. The question whether amount has been so received under a protest is, however, a question of fact to be determined from the attending circumstances. See Tara Chand v. L. A. Collector (A.I. R. 1971 Delhi 116) and Gian Chand v. Union of India (A.I. R. 1970 Delhi 83. A Division Bench of the Calcutta High Court in Md. Golam Ali v. L. A. Collector (A.I.R. 1969 Cal. 221), held that when the applicants made application stating that they were prepared to accept compensation under protest and payments were subsequently made for which receipts were given on the back of those applications but without mentioning the words 'under protest' the payment was received under protest and the right to apply for a reference was not waived.

       2. Learned counsel for the applicants, however, contended that the payments were accepted under protest by all the claimants including the applicants in these revision applications. The impugned order itself indicates that some of the claimants did raise a protest to the award and received the amount of compensation under protest. The impugned order itself allows their application for making reference. Learned counsel submitted that these applicants who are illiterate, signed upon certain paper which at the top contains the words 'under protest'. They made it clear that they were receiving the compensation under protest. Learned counsel appearing for the State was not in a position to throw any light upon this factual aspect of the matter. Ordinarily, while deciding upon an application for making reference, the Collector passes an ex – parte order and does not hear the applicant. The order passed under section 18 of the Act, however, according to the local amendment, is revisable by the High Court and the Collector for that purpose is deemed to be the Court subordinate to the High Court within the meaning of Section 115 Code of Civil Procedure. It is, therefore, competent for this Court to see whether the application for reference bas been disposed in accordance with law and with reference to the material on record. The order passed by the Collector bas to be set aside if the Collector commits illegality or material irregularity in passing that order. Since in the present case, the Collector does not seem to have applied his mind to the circumstances existing at the time when the compensation was paid to the applicants and also did not take into consideration the papers on record a reference of which was made at the Bar at the time of hearing, the order rejecting the application for making reference under section 18 cannot be allowed to stand and must be set aside. The matter requires reconsideration and a fresh order by the Collector after taking into consideration the material on records, the conduct of the applicants at the time of receiving the amount of compensation and also their antecedent conduct. AIR 1971 Delhi 116, AIR 1970 Delhi 83 and AIR 1969 Cal. 221 relied on. Revision allowed.