Bombay High Court
Amol Rambhau Arjun vs State Of Maharashtra & Others on 29 March, 2000
Equivalent citations: 2000(4)BOMCR715, 2000(4)MHLJ302, 2000 A I H C 3855, (2000) 4 MAH LJ 302, (2002) 1 LANDLR 650, (2001) 1 MAHLR 360, (2001) 1 LACC 21, (2001) 1 ALLMR 149 (BOM), 2000 BOM LR 3 245, (2001) 1 CIVLJ 130, (2001) 1 CURCC 299
Author: R.M. Lodha
Bench: R.M. Lodha
ORDER R.M. Lodha, J.
1. Rule. Returnable forthwith. Mr. Tated waives service for respondents.
2. By consent rule is heard at this stage.
3. In this revision application, the petitioner is impugning the order of the Assistant Collector, Khanapur. Sub Division Vita, Dist. Sangli whereby the application made by him under section 18 of the Land Acquisition Act for making reference to the District Court has been rejected.
4. The Assistant Collector has rejected the reference application on the ground that the petitioner's case was covered under second proviso to sub section (2) of section 31 of the Land Acquisition Act.
5. In the application under section 18 made by the petitioner before the Collector there is a specific and categorical averment that the amount of compensation was received by him under protest. No reply was filed to the said application and the said fact was not at all therefore disputed. Thus, the case set up by the petitioner that the claim amount was accepted by him under protest went uncontroverted. The only question that arises in the backdrop of the aforesaid facts is whether the acceptance of amount of compensation under protest should be in writing or the claimant can orally protest while accepting the amount of compensation.
6. Section 31 of the Land Acquisition Act, 1894 as amended reads thus :
"31. (1) On making an award under section 11, the Collector shall tender payment of the compensation awarded by him to the persons interested entitled thereto according to the award and shall pay it to them unless prevented by someone or more of the contingencies mentioned in the next sub-section.
(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 title to receive the compensation or as to the appointment of it, the Collector shall deposit the amount of the compensation in the Court to which a 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 shall be entitled to make any application under section 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 Act, to pay the same to the person lawfully entitled thereto.
(3) Notwithstanding anything in this section the Collector may, with the sanction, of the (appropriate Government) instead of awarding a money compensation in respect of any land, make any arrangement with a person having a limited interest in such land, either by the grant of other lands in exchange, the remission of land revenue on other hands held under the same title, or in such other way as may be equitable having regard to the interest of the parties concerned.
(4) Nothing in the last foregoing sub-section shall be construed to interfere with or limit the power of the Collector to enter into any arrangement with any person interested in the land and (competent) to contract in respect thereof."
7. Proviso 2 to section 31 bars the person who has received the amount other than under protest from making any application of reference under section 18. The said provision does not lay down the mode and manner in which the protest is to be made while accepting the compensation. It does not say that the protest by the claimant must be necessarily in writing. The claimant may receive the amount of compensation under protest orally and the oral protest while receiving the compensation shall not disentitle the claimant from making any application for reference under section 18. The provision covers the protest either made in writing or orally. I am fortified in my view by the Judgment of the Gujarat High Court in Rabari Mahadev Amra v. Prant Officer, Radhanpur, wherein A.M. Ahmedi J., (as he then was) in paragraph 4 of the report held thus :
"4. The short question which arises for consideration is whether the protest to be lodged under the second proviso to section 31(2) must be in writing or can be an oral one also. The proviso merely states that no person who has received the amount otherwise than under protest shall be entitled to make any application under section 18 of the Act, Even the first proviso which entitles a person admitted to be interested to receive the amount of compensation determined under the award under protest as to its sufficiency does not provide that the protest must be reduced to writing. There is nothing in the second proviso to section 31(2) that the person receiving the amount must receive the same under a written protest so as to be subsequently entitled to make a reference under section 18 of the Act on the question of sufficiency of the amount awarded in respect of the acquired land. The learned Judge relied on a passage from V.G. Ramachandran's (3rd Edition) on the law of Land Acquisition which reads as under :
"The mode of protest is generally by endorsing on the counter foil of the cheque or the receipt taken by the Collector, that the payment is taken under protest. There must be something in writing indicative of the protest." This observation merely states that generally the protest is recorded by endorsing on the counter foil of the cheque or the receipt taken by the Collector the fact that the amount is accepted under protest. The subsequent sentence that there must be something in writing indicative of the protest merely deals with the recording of a protest made by the owner while accepting the amount of compensation. That observation does not mean that there cannot be an oral protest made at the time of accepting the amount fixed under the award. There is nothing in the statute to show that the protest must necessarily be in writing and if an oral protest is not only pleaded but also proved that would not be sufficient to remove the bar created by the second proviso to Section 31(2) of the Act, to lay down that the protest ought to be in writing is to read words in the statute which are not present. A person who accepts the amount without a written protest runs the risk of his reference being refused on the ground that it suffers from the statutory bar created by the second proviso to section 31(2) of the Act. 1 am, therefore, of the opinion that the learned trial Judge was not right in holding that since the protest was not in writing, the statutory bar created by the second proviso to section 31(2) was attracted and the reference was incompetent."
8. The Andhra Pradesh High Court in Smt. Suram Ramakka v. The District Collector, Karimnagar & another, has held that for want of any particular mode of protest, oral protest is valid and the application under section 18 for making reference is maintainable. Paragraphs 1 and 2 of the said order reads thus :---
"1. The relief sought for in this writ petition is to refer the matter to a competent Civil Court under section 18 of the Land Acquisition Act, for determination of proper compensation. Admittedly, the Award was passed on 23-6-82 and section 12(2) notice was also served by the said date order, section 18 application was filed on 16-8-1982 by the petitioner seeking a reference and the same is well within time as the same was filed within two months from the date of the service of section 12(2) notice. The objection of the learned Government Pleader is that the amount was received otherwise than under protest. But, in paragraph 6 of the affidavit, it is stated categorically by the petitioner on oath that she had orally protested with regard to the quantum of compensation.
2. The petitioner is an illiterate land lady residing in a remote corner of the rural area and the law does not prescribe any particular mode of protest and such an oral protest is a valid protest under law. The assertion that oral protest is made by the petitioner is not controverted by respondents by filing any counter-affidavit. In the circumstances. I have to accept the contention. If that be so, the reference has, got to be made."
9. Thus, it is clear that a person can receive compensation under oral protest and when that is done such person is not precluded from making any application for reference under section 18 of the Land Acquisition Act. I have already noted above, the petitioner has categorically, specifically and in unambiguous terms stated in paragraph 1 of the application made under section 18 of the Land Acquisition Act that the amount of compensation was received under protest and the said fact was not disputed by respondent Nos. 1 and 2 by filing any reply to the said application or any affidavit of any sort. Thus, it has to be assumed that the petitioner accepted the amount of compensation under oral protest and that being so the application for reference made under section 18 could not have been rejected by invoking second proviso to sub-section (2) of section 31(1) may observe at this stage that in paragraph 18 of the impugned order the Assistant Collector observed thus :-
"Based on these conclusions, 1 proceed to consider each and every application for reference. Out of 128 applications received only 6 application fulfilled the condition of second proviso to section 31(2). The concerned six applications made a valid protest either at the time of payment or prior to that. Their list is enclosed other application were rejected as they do not fulfil this conditions precedent. On further scrutiny I found that these six applications were filed within the period of limitation. So they are fit case to be referred to the District Court for further adjudication.
Despite observing as aforesaid, the Assistant Collector rejected the application which is unsustainable in law.
10. Accordingly, the revision application is allowed. The order dated 7-4-99 passed by the Assistant Collector, Khanapur Sub Division Vita. Dist. Sangli is quashed and set aside and he is directed to make reference under section 18 to the District Court. Needless to say that it would be open to respondent Nos. 1 and 2 herein to raise all permissible pleas including the consequences flowing from acceptance of the amount of compensation under protest or otherwise before the District Court on reference being made by the Assistant Collector.
11. Rule is disposed of in aforesaid terms.
12. No costs.
13. Application allowed