Raja Ram vs The State of Himachal Pradesh and Another

Chet Ram Thakur, J.—This is a petition under Articles 226 and 227 of the Constitution of India filed by Shri Raja Ram for a direction to be issued to the Land Acquisition Collector (Respondent 2) to forward the application of the Petitioner u/s 18 of the Land Acquisition Act (shortly called the Act) to the District Judge for adjudication of his objections.

15 bighas 7 biswas of land comprised in khasra number 36/1 in village Gumma, Tehsil Kasauli, District Solan, belonging to the Petitioner had been acquired by the Land Acquisition Collector (hereinafter referred to as the Collector) by his award dated June 21, 1973. According to the Petitioner no publicity etc., as required u/s 4(1) of the Act was made in the locality by the authority concerned and as such the Petitioner could not file objections u/s 5-A of the Act. He became aware of the award only on May 24, 1974, when compensation was paid to him. He received the same under protest. Before that date he had no notice of the award. He, therefore, immediately filed an application through his counsel before the Collector u/s 18 of the Act, copy of which is Annexure ''A''. To the knowledge of the Petitioner no orders had been passed by Respondent 2 on the same. The action of Respondent 2 is not forwarding the application u/s 18 to the District Judge is illegal because the Collector, according to him did not forward the application considering the same to be time barred. He had not received any notice of the award. There was no discretion with the Collector u/s 18 to forward or not to forward the application and he was duty bound to make a reference. He could not file the application u/s 18 before June, 1974, as he for the first time came to know about the award only in May 1974, and as such the application was within time. It was also not for the Collector to decide whether or not the application is barred by time.

The Respondents raised a preliminary objection to the effect that the petition suffers from laches and delay and as such deserves to be dismissed. Further that the writ petition is bad for non-joinder of the Himachal Pradesh Housing Board as a party on whose behalf the land was acquired and possession delivered. It was further averred that the reference was withheld not on account of being time barred but on account of the fact that the Petitioner had received the amount of compensation without any protest.

It has, however, been admitted by the Respondents that the Petitioner made an application, as envisaged u/s 18 of the Act; It is also admitted that the application which was filed was not withheld because is was time barred. The only submission made by them was that the Petitioner had received the award amount without protest and as such no reference could be made to the District Judge.

The Petitioner has in his rejoinder stated that he became aware of thd award of the Collector on May 20, 1974 when the said amount of award was received by him. He had protested against the inadequacy of the amount of compensation to the Collector. He being an illiterate person, who could only append his signatures in Urdu or Landa script had specifically asked Respondent 2 to record his protest and it was made clear to him by Respondent 2 that the amount is being given to him under protest and his protest has been recorded. The fact that the Respondents kept silent on the application filed u/s 18 of the Act for the last three years also fortifies the Petitioner''s assertion. It does not lie in the month of the Respondents now to come with the plea that the amount of award was accepted without any protest.

The first thing is that if the amount of award is received by a person without protest whether the Collector has got the jurisdiction to withhold the forwarding of the reference petition to the District Judge for adjudication of the objection raised by any of the interested persons.

u/s 18(1) of the Act, any person interested who has not accepted the award, may require that the matter be referred by the Collector for the determination of the Court, the questions with regard to the measurement of land, the amount of compensation, the persons whom to it is payable or the apportionment of the compensation among the person interested. This sub-section, therefore, would show that it enables any interested person, who has not accepted the award to require that the matter be referred by the Collector for the determination of the Court. If the aforesaid conditions have not been satisfied then no application for reference could be maintainable or, in other words, the Collector will be within his jurisdiction to withhold the application from forwarding it to the Court.

The copy of the application is Annexure ''A''. It is dated 19-6-74. The award in the case was made on 21-6-1973. He received the amount of compensation awarded by the Collector on 20-5-1974, the day when the learnt about the award having been made. In para 4 of Annexure ''A'', which was filed before the Collector for making a reference to the Court he has stated as under:

That the award has been known to the Petitioner by you on 20-5-1974 when the Petitioner was paid compensation and he received the same under protest. Prior to that date the Petitioner had no knowledge of the award.

The Collector has denied this averment of the Petitioner that it was received under protest, rather, he has filed a copy of the voucher for payment of the compensation money to the Petitioner which is annexed to the return. It does not show that the money was received under protest. I have also satisfied myself about this fact from the original record and there is nothing mentioned if the amount was received by Shri Raja Ram Petitioner under protest. However, the Petitioner in his rejoinder, as already mentioned above, has reiterated that the money was received under protest and that the averment made by the Respondents in their return was incorrect.

The learned Counsel for the Respondents has referred me to Sections 18 and 31 of the Act. I have already given what is required u/s 18A reference u/s 18 is not maintainable if the award has been accepted. Under Sub-section (1) of Section 31 the Collector is required to pay the compensation awarded by him to the persons interested entitled thereto according to the award. Under Sub-section (2) of Section 31 if the persons entitled to receive the compensation do not consent to receive it or if there is no person competent to alienate the land or if there is any dispute as to the title and if there is any dispute as to the appointment of the compensation then the Collector is empowered to deposit the money in Court when he cannot make payment for any of the aforesaid reasons, subject to any payment made under the first proviso which allows any person admitted to be interested to receive the payment under protest as to be sufficiency of the amount. The second proviso to this Sub-section (2) lays down that a person who accepts payment of the amount tendered by the Collector without protest is not entitled to make any application for reference u/s 18. Therefore, what follows from the above is that once a person has received the amount without any protest he is not entitled to apply for a reference u/s 18.

In Sardara Singh and Anr. v. State of Punjab 1970 Cr.i.L.J. 68 a learned Judge of the Pb. and Haryana High Court held that there is a positive bar to reference if the amount has been accepted without protest, u/s 31(2). Second Proviso, and, in any event, even if a reference is made in ignorance of that provision, Section 20(b) clearly gives jurisdiction to the Court to non-suit the claimant if he has accepted the amount awarded without protest, i.e. he has accepted the amount awarded without protest. Any way in the present case no reference has been made so as to give jurisdiction to the Court to non-suit the claimant where it may be proved that the amount was accepted by the claimant without protest.

In the instant case the protest has not been made in the document, form CC appended to the petition which is a voucher of payment. However, the Petitioner contends that he received the payment under protest and he has made a mention of this in his application u/s 18 of the Act.

The Full Bench of the Punjab and Haryana High Court, in the case The State of Punjab Vs. Smt. Harcharan Kaur, , had laid down:

In view of the provisions of Sections 18, 20 and 31 any person who has accepted the award is not entitled to make an application u/s 18 nor is he entitled to receive the notice of any application that may have been made by some other person.

One of the contentions before this Court raised by the Petitioner was that he had not received any notice from the Collector about the withholding of his reference petition u/s 18 and that the authority was a quasi-judicial authority and it was incumbent upon him to give a proper hearing in accordance with the principles of natural justice. But, this submission does not appear to be correct because as is already held in this authority (just referred to above) that the Act has not prescribed any proedure to be followed by the Collector for dealing with the applications u/s 18 and the practice is that the Collector decides such applications ex parte without issuing notice to the Respondents so that at that stage the Respondents have no opportunity to object that the application is not competent and should not be referred to the Court.

Similarly in Mrs. S. Thomas v. The Collector of Madras AIR 1958 Mad 186 it had been held:

The acceptance of an award u/s 18 and the consent referred to in Section 31(2) connote the same idea and is an inference drawn from the same facts. When Section 31 speaks of a receipt without protest as debarring the order for making further claims, the same criterion must apply to the construction of Section 18, and when admittedly the owner received the compensation awarded without protest it must be taken that he accepted the award.

The provisions of Sub-section (1) of Section 18 also say that a reference u/s 18 will lie only when the award has not been accepted and if the award has not been accepted, and the payment has not been received under protest then the reference application u/s 18 shall be barred under the first and second provisos, to Sub-section (2) of Section 31 of the Act.

The learned Counsel for the Petitioner contends on the basis of Kana Navanna Narayanappa Naidu v. Revenue Divisional Officer, Sivakasi AIR 1955 Mad 23 that in making a reference to the Court, the Collector does not act merely as an agent of the Government. He is just like any other statutory authority functioning within the powers conferred on him by the legislative enactment. Within the framework of that Act he has to act judicially and if he does not do so the outcome of such an act cannot be said to be legal. His contention therefore is that before passing an order withholding the application u/s 18, he is to issue a notice to the person who had filed the same so that he could also satisfy the Collector that the reference was competent. In that appeal the only question was whether the learned Subordinate Judge had jurisdiction to investigate or decide whether the application of the Appellant u/s 18 of the Act was barred by limitation as it was admittedly made beyond six weeks prescribed by proviso (a) to Section 18 and did not admit of any dispute. Since the question was one of general importance as to whether a Court to which a reference has been made u/s 19 of the Act has jurisdiction to go behind that reference and decide whether the reference itself is competent and whether the application u/s 18 of the Act was barred by limitation, the matter was referred to the Division Bench, which held:

When there is such an impelling and binding provision to the effect that the application for making the reference shall be made within the period specified in the Act, it is difficult to see how a party who makes an application after the expiry of such a period can ask the Collector to make the reference. The necessary ''sine qua nor of the reference is the basic fact that the application for such a reference must be made in accordance with the provisions of Section 18 of the Land Acquisition Act and within the period specified in the first proviso to that section and if those provisons are not complied with, there cannot be any valid application at all and necessarily if such an application does not exist, a positive reference is incapable of existence.

So, this authority as a matter of fact does not support the submission made by the learned Counsel for the Petitioner that it is incumbent upon the Collector to give a hearing before he elects to withhold the forwarding of the application when he finds that it is barred under the second proviso to Sub-section (2) of Section 31 and Section 18(1). It is obvious that the award has been accepted and there is no endorsement or any indication of any protest under which the amount has been received.

The other authority cited was Abdul Sattar Sahib Vs. The Special Deputy Collector, Vizagapatam Harbour Acquisition and Others, There the question was not whether the Collector is to issue a notice and give a hearing before he decides to withhold the making of a reference on an application of any interested person made u/s 18 of the Act. It was a case where a revision was filed against the order refusing to refer the application u/s 18 to the civil Court and it was held that the Court has no power u/s 115, Civil Procedure Code, or u/s 107 of the Government of India Act, to revise the order of a Collector acting under the provisions of the Land Acquisition Act refusing to refer to the Court, an application u/s 18 of the same Act by a person interested, requiring him to refer the matter for determination of the Court. When Collector acts under part III, of which Section 18 forms part, he is acting in a different capacity because he has there to decide certain things but no revision petition lies to High Court because he is not a Court at all.

Therefore, the authorities relied upon by the learned Counsel for the Petitioner are not of any assistance to him.

What follows from the above, therefore, is that if the award has been accepted as contemplated u/s 18(1) read with the first and second proviso to Section 31(2) of the Act then a reference u/s 18 is barred.

In the instant case the Petitioner says that he had made a protest and which protest is not recorded on the voucher of payment of compensation money. The Petitioner no doubt has reiterated this averment in the rejoinder that he received the same under protest, but there is no such protest recorded and which, in my opinion, must be recorded as an endorsement of the indication of the interested party to accept the award. This point can be decided by this Court whether there was a protest or not, on the basis of the documents and the affidavit placed before the Court and I am of the view after having gone through the documents that the averment made by the Petitioner is belied by the document, Annexure�Form CC, appended to the return where Where the amount is shown to have been received by Shri Raja Ram Petitioner without any protest. The submission made by the learned Counsel for the Petitioner that Shri Raja Ram is an illiterate person and that he had signified his unwillingness to receive the amount of award and had asked the Collector, to tender the payment, to record his protest is wholly untenable, because Raja Ram has appended his signatures. The record shows that other persons who were also tendered payment On the same day, their protests have been recorded. Therefore, in these circumstances this petition is barred and the Collector was perfectly justified in not forwarding the same.

The Respondents had also taken the objection, both of laches and delay as preliminary objection as also in reply to para 7(e) in which it had been mentioned that at the same time the petition suffers from laches and delay and deserves to be dismissed. The application u/s 18 was filed by the Petitioner on 19-6-1974 and this petition was presented in the Court on 23-4-1977, i.e. after two years and 10 months and it is quite obvious that the petition suffers from laches. The Petitioner has mentioned in para 6 of the petition "that on the aforesaid application u/s 18 of the Act no order to the knowledge of the Petitioner has been passed by Respondent No. 2, although it is the duty of the Land Acquisition Collector to forward the application to the District Judge". In para 7 he has sumbitted "that the action of Respondent No. 2 in not forwarding the aforesaid application u/s 18 to the District Judge is illegal, ultra vires and void inter alia on the following other grounds" and then the grounds are given. There is no explanation why the Petitioner waited for two years and ten months before coming to this Court to seek a direction in exercise of the extraordinary powers of this Court. In the absence of any explanation it would be quite obvious that the petition suffers from laches and delay and the Petitioner, who has been quite indolent cannot be granted the relief especially when there is no endorsement made by him on the voucher of payment that the same was received under protest and mere saying that he is an illiterate person and he had asked the Collector to record his protest is no excuse to condone the delay. Hence on this point also the petition is not sustainable.

The result, therefore, is that the petition fails and is hereby dismissed, with no order as to costs.