Kerala High Court
Assain vs Land Acquisition Officer on 10 February, 2003
Equivalent citations: 2003(1)KLT863
Author: M.R. Hariharan Nair
Bench: M.R. Hariharan Nair
JUDGMENT M.R. Hariharan Nair, J.
1. These two cases involve the same question viz. entitlement for reference of questions like quantum of compensation under Section 18 of the Land Acquisition Act, 1894.
2. I shall first take up O.P. No. 14759/2002. The five petitioners therein assert that their land was acquired for the purposes of Kerala Water Authority pursuant to a Notification dated 24.1.1999. The petitioners were directed as per Ext. P2 notice to appear before the respondent on 23.5.2001 to collect the compensation awarded which was to the tune of Rs. 10,18,334/-. The petitioners state that they received the notice issued as above only on 24.5.2001 and therefore could appear only on 26.5.2001 on which date they received the compensation amount under protest. In due course, they presented Ext. P3 application dated 20.6.2001 which was acknowledged by the respondent on 5.7.2001 vide Ext. P3. The petitioners are aggrieved that as per Ext. P6, the reference sought for was declined on the ground that the claimants 3 and 4 mentioned therein who are the respondents 3 and 4 herein had received the amount without protest and as such the motion for reference was inadmissible under Section 31(2) of the Land Acquisition Act.
3. In O.P. No. 2490/2003 also the question involved is the same. There the compensation amount was received on 10.11.2000; but written protest was only under Ext. P1 dated 28.11.2000. According to the petitioner the amount was received under oral protest made on 1.0.11.2000 itself. There also the request for reference was turned down vide Ext. P2 stating that at the time when the cheque was received there was no protest.
4. Mr. E.R. Venkiteswaran, who presented the case of the petitioners, submitted that the stand of the Department that written protest contemporaneous with the disbursal of the amount, was necessary is incorrect and that oral protests raised on 26.5.2001 and 10.11.2000 were quite sufficient. In this regard, he relied on the decision of the Full Bench of this Court in Joseph v. Special Tahsildar (2001 (1) KLT958).
5. The learned Government Pleader who was heard, submitted that here are two cases where the officers concerned have asserted in Ext. P6 and P2 respectively that there were not even oral protests and that in the circumstances, their official versions have to be given mere weight. He also points out that the Full Bench decision relied on by the petitioners arose from entirely different facts and that it cannot be said as a universal rule that oral protest is sufficient to mandate a reference under Section 31 (2) of the L.A. Act.
6. As far as the second contention is concerned, it does not require a detailed order to dispel the contention of the learned Government Pleader. In para-42 of the judgment in Joseph's case (supra) the Full Bench has stated in categoric terms that the protest contemplated in the proviso to Section 31 (2) can be an oral protest as well and that it is not necessary that the protest should always be in writing. The said decision is also authority for the proposition that if there is neither a written protest nor even an oral protest at the time of receiving the compensation, the mere making of an application for reference under Section 18, by itself, would not be sufficient to infer that the claimant had accepted the amount under protest so as not to disentitle him of the remedy available under Section 18 of the Act. In other words, oral protest at the time of receiving the compensation cannot be inferred to have been made merely because subsequently an application for reference has been made under Section 18.
7. This narrows down the point for decision in the present case to one of question of fact, i.e. as to whether it is the version of the petitioners that they received the amount under protest, albeit orally, or the assertion of the Land Acquisition Officer in Exts. P6 & P2 that there was no such protest is acceptable.
8. The question arises as to how and by whom a controversy of this nature i.e. on the aspect whether there was in fact an oral protest made at the time of receiving the compensation or not can be resolved. Certainly the Land Acquisition Officer cannot decide this disputed aspect because he has already taken a view that there was no oral protest and there is the other rival version of the petitioner that there was, in fact, a protest raised. In such circumstances, certainly a third authority has to go into the disputed fact. The Full Bench decision does not give any direction as to the manner in which the controversy on such a question has to be dealt with.
9. The learned counsel for the petitioner relied on the decision in Karnail Singh and Anr. v. State of Punjab and Anr. (AIR 1983 Punjab and Haryana 160) which deals with a more or less similar position. There the Reference court was the District Court. It was decided that the District Court, on reference, should deal with such a question as one of the disputed aspects and decide on it. In the absence of any other machinery provided under the Act to resolve the controversy, I am of the view that a similar method can be devised for being followed in cases of this nature; i.e. where there is controversy between the parties on the question as to whether the acquisition compensation was received under protest or not. The reference court, it appears to me, is certainly the most appropriate forum because it is equipped with the necessary machinery and man power.
10. In the circumstances, it is directed that in all such cases where a claimant makes categoric assertion that he had raised an oral protest and names the officer before whom the protest was made at the time of receiving compensation with essential details like time, date, place, etc. where the oral protest took place, averred in an affidavit and filed before the Collector he shall, if the motion is otherwise in order, make a conditional reference to the Court with the details contemplated in Section 18 wherein he shall specifically point out that the reference is subject to the decision on the aspect of existence of protest. The affidavit presented by the party shall also be sent up to the Court in original after retaining copy. In such cases the reference court, after registering the case, shall deal with the question of existence of oral protest mentioned in the affidavit as a preliminary issue and decide on it through preliminary order passed after due enquiry with due notice to all the concerned parties and affording opportunity to the claimant and to the State to adduce oral or other evidence to support the respective contentions. In case the reference court is satisfied that there was actually an oral protest made at the time of receiving the compensation as alleged, it shall, after passing preliminary order to that effect, proceed with the reference on the other questions referred and decide on them in accordance with law. If the reference court's preliminary decision is against the petitioner, i.e. to the effect that the case of oral protest alleged in the affidavit is incorrect, the matter can be closed straight away finding that the reference on other questions is not maintainable.
11. Until any further Rules are framed in the matter the Collector, the Land Acquisition Officers and the Reference Courts, faced with such situation, shall follow the above course of action. The Registry of this Court will bring this to the notice of all concerned including the Chief Secretary of the Government of Kerala, Commissioner, Land Revenue, TVM, and all the District Collectors.
12. In view of my finding as above, the Original Petitions are closed with a direction to the Collectors (Respondents in O.P. 14759/2002 and 2nd respondent in O.P. No. 2490/2003) to make reference as mentioned above to the reference courts concerned and with a direction to the reference court concerned to decide the matter in accordance with the guidelines mentioned herein; provided, the petitioners herein file the required affidavits before the respective Collectors (Land Acquisition Officers) within a period of three weeks from today.