Collector Land Acquisition vs Tarban Singh

This is an appeal by the Collector against the order of the D. J., Jammu dated 10472 enhancing the compensation of the land awarded by the

Collector by Rs. 17,026.43 including Jabirana and other charges.

It appears that 240 kanals and 1 marla of land situate in village Paloura, Tehsil Jammu, belonging to different persons was acquired by the

Collector for public purposes. So far as the respondent is concerned, his land was acquired to the extent of 40 kanals and 1 marla, being a part of

the big chunks of land acquired by the Collector as indicated above. The Collector fixed some compensation regarding the other lands of which the

land in dispute formed a part and the learned Distract Judge granted compensation at the rate of Rs. 2000/per kanal. Ultimately a compromise was

effected in the High Court whereby the price of the land acquired was fixed at the rate of Rs. 1300/ per kanal. After the land was acquired by the

Collector, the respondent was paid a compensation of Rs. 39148.88 by the Collector. Dissatisfied with this amount, the respondent made an

application to the Collector for referring the matter to the civil court. In this way the reference was sent to the District Judge who in the first place

fixed compensation at the rate of Rs 1300/ per kanal on the basis of the compromise effected in respect of cases relating to other lands. On appeal

to this court, however, the judgment of the District Judge was set aside and the case was remanded to him for fixing compensation after taking

evidence of the parties. When the case was received back on remand by the District Judge, he examined two witnesses on behalf of the

respondent claimant and the Collector did not choose to produce any evidence to rebut that evidence. According to the witnesses examined by the

District Judge, the actual market value of the land acquired was Rs. 7000 to 8000 per kanal but the Judge found that the version given by the

witnesses was rather exaggerated and he accordingly determined the compensation at the rate of Rs. 1300/ per kanal because that was the rate

fixed in respect of other lands of which the land in dispute formed a part.

In support of the appeal, Mr. Amar Chand has raised two points before us. In the first place it was submitted that the reference was

incompetent inasmuch as the respondent claimant accepted the compensation paid to him by the Collector without any protest and therefore the

reference was barred by the second proviso to Section 32 of the Land Acquisition Act. Secondly it was contended that the District Judge in

enhancing the compensation had adopted the figure of the compromise as yardstick. We would like to the take up the first point relating to the

competence of the reference. The admitted facts are that the award was made by the Collector on 9368. The claimant sent an application under a

certificate of posting to the Collector intimating his intention to receive the amount only under protest. This application was filed on 17468. On

19468 the respondent received the amount of compensation and submitted a receipt which does not bear any date. The Addl. Advocate General

tried to challenge the existence of the application filed by the respondent, but in view of the evidence of the Collector himself, it is absolutely clear

that the respondent did file such an application on 17468, and no suggestion was ever made that the respondent had filed no such application. In

view of this admitted position, it is not possible in this appeal to allow the counsel to raise the plea for the first time that no such application was

filed by the respondent. The Addl. Advocate General, however, submitted that assuming that the application was filed on 17468, unless the receipt

given by the respondent showed that the amount was received under protest, the second proviso would come into effect and bar reference to the

Civil court. In support of his submission he relied on two decisions in Suresh Chandra v. L. A. Collector, AIR 1964 Cal 283 and Somasundaram

v. Dist. Collector, AIR 1967 AP 126. In order to understand the argument put forward by the Addl. Advocate General it may be necessary to

quote in extenso the proviso which is the subjectmatter of interpretation before us. The second proviso to Section 32 (2) of the Land Acquisition

Act runs as follows:

Provided also that no person who has received the amount otherwise than under protest shall be entitled to make any application under Section

18"".

Analysing this proviso the position that emerges is as follows:

(1) No particular mode, method or form has been prescribed by this proviso according to which a protest has to be intimated to the Collector by

the claimant.

(2) The proviso contemplates that the claimant receives the amount otherwise than under protest. The time when the claimant is to receive the

amount is not indicated in the proviso, nor does it say that protest must be made only at the time of payment of the compensation and not before.

(3) It would appear that this proviso incorporates the rule of estoppel, and it is well settled that before invoking the rule of estoppel it has to be

proved that the act was a conscious one. In these circumstances therefore all that the statutory provision requires is that there must be evidence to

show that the receipt of the compensation was not voluntary but under protest whether made before or at the time of the act, namely the receipt of

the compensation.

In AIR 1964 Cal 283 (supra) Banerjee, J. (as he then was) observed as follows :

Moreover an application for reference is not the proper document wherein to record such a protest. A protest ought to be made, firstly, in the

application for receiving the disputed amount of compensation, if any such application is to be at all made and must be recorded in the receipt

granted showing that the disputed amount of compensation money was accepted under protest.

(See pp. 284285 of the Reports)

These observations clearly show that Banerjee, J. was considering a case which squarely fell within the purview of the second proviso. In the

Calcutta case no protest was intimated to the Collector by the claimant before receiving the compensation and it was for the first time when the

application was made for reference to the civil court under Section 18 that it was suggested that the amount had been received under protest.

Banerjee, J. held that this was not a compliance of the provisions of the second proviso and therefore the reference was barred. It is true that the

learned judge has remarked that the protest must accompany the receipt of compensation, but that point did not arise for consideration, and was

mentioned only by way of illustration. At any rate if we take this decision to lay down as a matter of rule of law that unless the protest is

accompanied with a receipt of payment of compensation the second proviso will come into operation and bar the reference, then with due

deference to the learned Judge we express our respectful dissent from that view.

Our attention was then drawn to AIR 1567 Andh Pra 126 (supra) wherein a Division Bench of the Andhra Pradesh High Court observed as

follows:

The proviso contemplates the acceptance of the tender by receipt of payment under protest or otherwise. The second proviso postulates the

effect of acceptance of the tender without protest. The intendment and the scope of the provision is perfectly intelligible and poses no ambiguity.

The protest must necessarily be made to the land acquisition officer who tenders payment of compensation, and by necessary implication at the

time when he so tenders the payment.

The first part of the ratio laid down by their Lordships that the protest must necessarily be made to the Land Acquisition Officer who tenders

payment of compensation, cannot be disputed, but the second proposition that by necessary implication the protest must be made when the

payment is tendered does not appear to be in consonance with the aim and object of the second proviso. By insisting that protest must be made at

the time the claimant receives the compensation, we read in the second proviso something which is not there at all. What the proviso contemplates

is that the protest must be made in any form either before or at the time of receiving the payment of compensation.

In this case on the admitted facts the claimant had undoubtedly filed an application clearly expressing his intention to receive the amount of

compensation under protest and it was after having filed this application that he received the amount of compensation two days thereafter and gave

a receipt. It was therefore not necessary to repeat the protest in the receipt given by the claimant. We are fortified in this view by a, decision of the

Andhra Pradesh High Court in Shanta Bai v. Collector LA, AIR 1971 AP 117, 118 wherein Sambasiva Rao. J. observed as follows:

There is no particular form of indicating the protest specified under the Act or under the rules. Such protest can either be explicit or can be

inferred by necessary implication from the circumstances. The very fact that she had earlier filed a petition for reference of her claim to the court is

an indication positive of her protest. It is not further necessary to state that she was not withdrawing the money under protest.

(See page 118 of the Reports).

We prefer to reply on the observations made in the A. P. Case above and we do not agree with the observations made in the earlier cases (supra).

For these reasons we are clearly of the opinion that there was sufficient material on the record to show that the amount of compensation was

received by the respondent under protest. That being the position, the reference was fully competent and maintainable before the District Judge.

Coming now to the question of compensation awarded by the learned Judge, we are rather surprised to find that an objection has been taken by

the Collector rather than by the respondent against the finding of the District Judge. The unchallenged evidence before the District Judge consisted

of Behari Lal and Master Vishwa Nath which clearly shows that the market value of the land was 7,000/ to 8,000/ Rupees per kanal. The

Collector did not choose to rebut this evidence. In these circumstances there was absolutely no justification for the District Judge to have given a

lesser compensation of Rs. 1,300/ per kanal by not accepting the evidence of these witnesses which was not rebutted. The learned Judge,

however, proceeded on a very safe and reasonable basis. He thought that the evidence of the witnesses was a little exaggerated and as this land

formed part of other lands for which compensation had been fixed at Rs. 1300/ per kanal therefore in the absence of any evidence to the contrary,

this should be adopted as the yardstick to assess the compensation. When this court remanded the case to the District Judge, it never precluded

him from fixing any yardstick. The District Judge has fixed the compensation according to the evidence before him, because when the witnesses

mentioned that the value of the land was Rs. 7,000/ to Rs. 8,000/ per kanal, the figure of Rs. 1,300/ per kanal would be included therein. Thus it

cannot be said that the order of District Judge is against the spirit of our orders.

For these reasons we are satisfied that there is no force in this appeal which is dismissed with costs.