Bans Gopal vs State of Haryana and Others

G.R. Majithia, J.—The petitioner has sought a mandate to respondent No. 2 to make reference to the Land Acquisition Court u/s 18 of the Land Acquisition Act, 1894 (for short, the Act) for enhancement of compensation, in this petition under Articles 226/227 of the Constitution of India.

The petitioner owned land in revenue estate Mawai Tehsil Ballabgarh, district Gurgaon. The land was acquired by the Government of Haryana. The Land Acquisition Collector rendered the award on March 30, 1978. The petitioner was dissatisfied with the compensation offered by the Land Acquisition Collector. He moved an application u/s 18 of the Act before the Land Acquisition Collector for making a reference to the Land Acquisition Court. The reference was declined on the ground that the petitioner had accepted the compensation without protest.

When the writ petition came up for motion hearing before a Bench of this Court on July 17, 1989, the counsel for the petitioner, relying upon a Single Bench judgment of this Court in Karnail Singh v. State of Punjab (1982) 84 P.L.R. 267 submitted that it was not within the jurisdiction of the Land Acquisition Collector to decline to make a reference on the ground that the compensation was accepted without protest. The matter has to be left for adjudication by the Land Acquisition Court to whom the reference will be made u/s 18 of the Act. The Bench expressed doubt about the correctness of this judgment principally on the ground that the provision of sub-section (3) of Section 18 of the Act as introduced by the Land Acquisition (Punjab Amendment) Act II of 1954 were brought to the notice of the learned Judge deciding Karnail Singh case (supra). It is how the case is placed before us for decision. Acceptance of the compensation after filing of the application u/s 18 of the Act or prior thereto will amount to acceptance of the compensation under protest. Filing of a valid application u/s 18 of the Act would be deemed as a protest against the compensation awarded by the Land Acquisition Collector. In disputably, after accepting the compensation, an application u/s 18 of the Act was filed by the Petitioner.

In Sher Singh v. Union of India (1983) 85 P.L.R. 86 (F.B) S.S. Sandhawalia, C.J. (as he then was) speaking for the Full Beech of this Court, observed thus:-

"The matter has to be construed in the light of Section 31(2) of the Act and, with particular reference to the provisions thereof:-

"31. (1) - -......;

(2) 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 tide 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 the reference u/s 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 be person who has received the amount otherwise than under protest shall be entitled to make any application u/s 18:

Provided also that nothing herein contained shall affect the liability of any person, who may receive the whole or any part of any compensation awarded under this Art, to pay the same to the person lawfully entitled thereto."

It is manifest from. the above that the statute does not in any way Say down the precise time or the mode of recording the protest. This, therefore, is necessarily a matter of legal inference. The very time, a landowner prefers a reference u/s 18 of the Act, he, in essence, disputes the compensation awarded and lodges a protest against the same. Consequently, the receipt of compensation by him long after the presentation of an application u/s 18 of the Act cannot possibly be deemed as a waiver or withdrawal of Ms earlier clear cut claim of enhancement. To put it tersely filing a reference, application u/s 18 is itself a recorded protest within the meaning of the provision to Section 31(2) of the Act.

What appears to be plain on principle and the language of the statue has also the weight of precedent in its favour. It has been so opined in Shanta Bai Vs. Special Deputy Collector, Land Acquisition, Hyderabad, Tara Chand Vs. The Land Acquisition Collector, (Delhi Shahdara), Delhi, and by the Division Bench in The Collector, Jabalpur and Another Vs. Kamal Kumar Jain and Others, and within this jurisdiction in Mukhtiar Singh v. The State of Punjab 1980 P.L.J. 47. Undoubtedly, there is, however, a discordant note struck by Banerjee J., sitting singly in Suresh Chandra Roy v. The Land Acquisition Collection, Chinsurah AIR 1964 Cal 288. This, however, has been considered and not followed in Kamal Kumar Jain''s case (Supra) For the identical reasons I would respectfully recorded my dissent therefrom.

Both on principle and precedent it is held that the filing of a valid application u/s 18 of the Act for a reference must be deemed as a protest against the compensation awarded and the subsequent acceptance thereof would in no way bar the claim of enhancement thereof."

We were informed by the learned Deputy Advocate General, Haryana, that the judgment rendered in Sher Singh''s case (Supra) was not challenged by the respondents in the apex Court. The same has attained finality.

Sub-Section (3) as added in Section 18 of the Act by the Land Acquisition (Punjab Amendment Act II of 1954 postulates that if any order is passed by the Collector on the application filed under Sub-section (2) of Section 18 it shall be subject to revision by the High Curt u/s 115, Civil Procedure Code. The person aggrieved by the order of the Collector passed on an application filed under sub-section (2) of Section 18 of the Act may challenge the same through a revision petition in the High Court. These are only enabling provisions. The order passed by the Collector under sub-section (3) of Section 18 will not debar the person interested who has not accepted the award for getting a reference made to the Land Acquisition Court u/s 18 of the Act, if otherwise he is entitled to ask for a reference under the Law. The rule of law laid down by a Single Judge of this Court in Karnail Singh''s case (supra) is correct and is accordingly approved.

In the instant case, the Land Acquisition Collector while declining to make the reference u/s 18 of the Act observed that the decision be communicated to the petitioner under registered post. No document has been produced before us that the decision taken by the Land Acquisition Collector declining to make the reference was communicated to the petitioner. Since the order of the Collector was not communicated to the petitioner, the question of challenging the same did not arise.

For the reasons stated above, the writ petition succeeds. The Land Acquisition Collector is directed to make a reference of the petition u/s 18 of the Act (copy of which is appended as Annexure P-2 to the writ petition) within three months from the date of receipt of a copy of this judgment.