Hans Gopal vs State of Haryana

G.R. Majithia, J.—The petitioner has sought a mandate to respondent No. 2 to make reference to the Land Acquisition Court under Section 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 under Section 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 and another v. State of Punjab and another, 1982 P.L.J. 237, 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 under Section 18 of the Act. The Bench expressed doubt about the correctness of this judgment principally on the ground that the provisions of subsection (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''s case (supra). It is how the case is placed before us for decision. Acceptance of the compensation after filing of the application under Section 18 of the Act or prior thereto will amount to acceptance of the compensation under protest. Filing of a valid application under Section 18 of the Act would be deemed as protest against the compensation awarded by the Land Acquisition Collector. Indisputably, after accepting the compensation, an application under Section 18 of the Act was filed by the petitioner.

In Sher Singh v. Union of India, 1982 P.L.J. 494 : 1984 RRR 655, S.S. Sandhawalia, CJ. (as he then was) speaking for the Full Bench 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 provisos thereof :

"31.(1) ... ... ...

(2) If the shall not consent to receive it, or if there be no person competent 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 under Section 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 no person who has received the amount otherwise than under protest as to the sufficiency of the amount :

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 Act, to pay the same to the person lawfully entitled thereto.

It is manifest from the above that the statute does not in any way lay down the precise time or the mode of recording the protest. This, therefore, is necessarily a matter of legal interference. The very time, a landowner prefers a reference under Section 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 under Section 18 of the Act cannot possibly be deemed as a waiver or withdrawal of his earlier clear cut claim of enhancement. To put it tersely filing a reference application under Section 18 is itself a recorded protest within the meaning of the provisos to Section 31(2) of the Act.

What appears to be plain on principle and the language of the statute has also the weight of precedent in its favour. It has been so opined in Shanta Bai v. Special Deputy Collector, Land Acquisition, Hyderabad, AIR 1971 Andhra Pradesh 117, Tara Chand v. Land Acquisition Collector, Delhi (Shahdara) Delhi, AIR 1971 Delhi 116; and by the Division Bench in The Collector Jabalpur and another v. Kamal Kumar fain and others, AIR 1973 Madhya Pradesh 288, and within this jurisdiction in Mukhtiar Singh v. The State of Punjab, 1980 R.L.R. 97. Undoubtedly, there is, however, a discordant note struck by Banerjee, J., sitting singly, in Suresh Chandra Roy v. The Land Acquisition Collector, Ghinsurah, AIR 1964 Calcutta 288. This, however, has been considered and not followed in Kamal Kumar Jain''s case (supra). For the identical reasons I would respectfully record my dissent therefrom.

Both on principle and precedent it is held that the filing of a valid application under Section 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.

Subsection (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 subsection (2) of Section 18 it shall be subject to revision by the High Court under Section 115, Civil Procedure Code. The person aggrieved by the order of the Collector passed on an application filed under subsection (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 subsection (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 under Section 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 under Section 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 under Section 18 of the Act (Copy of which is appended as Annexure P2 to the writ petition) within three months from the date of receipt of a copy of this judgment.