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5. Mohan Lal petitioner in writ petition 721/69 in para 7 has contended that he accepted the compensation under protest vide cheque No. OL/15 632037 drawn on the State Bank of India Tishazari Delhi on 7-4-69, further in para 8 he says that to show that he received the compensation amount under protest he moved an application before the Collector on the same day, further alleging in para 9 that he deposited the cheque in the Bank after 3 days, i.e. on 9-4-69 and got the payment on 10-4-69. The above said averments were controverter by the Collector (Sh. G. Bahadur) in his reply affidavit, alleging that petitioner received the cheque on 7-4-69 denying the assertion that petitioner received the cheque under protest. The Collector in his reply asserts that on the other hand petitioner moved an application for payment of the compensation money to him on 7-4-69 without mentioning anything regarding his request to receive the compensation amount under protest. The Collector has further averred that he accepted the said application of the petitioner and issued the cheque to him, receipt whereof petitioner acknowledged in form 'CC' without any protest. He categorically denied that petitioner made application of protest on 7-4 -69 but made it on 16-4-69. To this specific averment that petitioner did not make any application on 7-4-69 stating that he was taking the amount awarded under protest but that he made the said application on 16-4-69, there is no traverse. Petitioner obviously appears to have shied away from denying the categorical assertion of the Collector that he made the, application on 16-4-69. If what is stated by the Collector is not correct, the petitioner would not have remained silent but would have controverter the allegation by filing a rejoinder affidavit.

6. The case of Dev Raj petitioner in C. W. No. 722/69 as stated in para 7 of the petition is that he received the compensation under protest vide cheque No, CC/15 632038 drawn on the State Bank of India, Tishazari Delhi on 7-4-69. In para 8 of the petition he alleges that he received the compensation amount under protest and moved an application before the Collector to the said effect on the same day and that he deposited the cheque in the Bank after one day, i.e. on 8-4-69 getting the payment on 10-4-69. The Collector controverting the aforesaid allegations in para 5 of his counter had contended that petitioner Dev Raj received the cheque on 7-4-69 but denied that he received the same under protest, alleging that on the other hand Dev Raj petitioner had moved an application on 7-4-69 for payment of the compensation amount to him without making any mention regarding the receiving of compensation under protest. The Collector further says that the said application was accepted and the cheque aforementioned was issued to petitioner which he accepted by signing in Form 'CC' without any protest. The Collector further stated in para 6 of his affidavit that Dev Raj petitioner did not make any application on 7-4-69 stating that he had received the compensation amount under protest but that he made application on 16-4-69. To this specific averment that petitioner did not make any application on 7-4-69 stating that he was taking the amount awarded to him under protest but that he made the said application on 16-4-69, there is no traverse. Petitioner Dev Raj too appears to have shied away from denying the categorical assertion of the Collector that he made the application on 16-4-69. If what is stated by the Collector is not correct, the petitioner would not have remained silent but would have controverter the allegations by filing as rejoinder affidavit.

7. The objections of Mohan Lal (C. W. No. 721/69) and Dev Raj (C. W. No. 722/69) accordingly on facts are distinguishable from the case of Fateh Singh (in C. S. No. 720/69). Mohan Lal and Dev Raj petitioners by filing a rejoinder affidavit having made an application that the amount of compensation assessed in respect of their share in the land be paid to them without registering any protest, their request was accepted and cheque for the requisite amount in favor of each of them was issued which they accepted on 7-4-69, without any protest in Form 'CC'. On their averments, Mohan Lal and Dev Raj both received the amount of the cheques on 10-4-69. For the first time they made an application to protest on 16-4-69 as stated by the Collector to which there is no traverse. It is only now that they aver that they had received the amount of compensation under protest but it was too late in the day to take such stand. Having accepted the cheque and realised the payment of the same on 10-4-69 without any protest, their reference applications under Section 18 of the Act were clearly barred by virtue of Ii nd proviso to Section 31(2) of the Act and their effort to put in an application on 16-4-69 that they had received the amount of compensation under protest, was of no avail to them. In this view of the matter, C. Ws. Nos. 721 and 722 of 1969, are dismissed, leaving the parties to bear their own costs.

8. This brings me to the case of Fateh Singh petitioner in C. W. No. 720/ 69. On behalf of this petitioner, it was submitted that Section 31(1) of the Act does not prescribe the manner of lodging the protest and that the 'CC' form does not contain any column where the petitioner could state that he was receiving the amount under protest. Petitioner accordingly on 28-3-69, the day when he received the cheque, moved an application Annexure 'B' stating therein that the amount of compensation awarded was less and that he would prefer appeal/revision/representation against the award and that he had received the compensation under protest. The said application having been filed on the same day, it was submitted, was borne out from the impugned order Annexure 'A' of the Collector. In the circumstances, it was strenuously contended it could not be said, that the petitioner had waived his right to file reference application under Section 18 of the Act or that he had not received the compensation under protest. The contention which appears to be weighty on first blush, cannot be sustained on a closer scrutiny. There can be no doubt that the protest has got to be made to the Collector, who tenders payment of compensation at the time when the Collector so tenders the payment. In the instant case, the amount of the award was tendered to the petitioner by cheque which the petitioner accepted without a protest. It was subsequent thereto in the day that he filed application Annexure 'B'; the amount of the compensation having already been received by him without protest by cheque, certainly amounted to having accepted the award and thereby disentitling himself to apply for the reference. Provisos I and Ii to sub-section (2) of Section 31 of the Act contemplate that only a person interested in the land acquired shall be entitled to make any application under Section 18 of the Act who had received the payment under protest as to the sufficiency of the amount and that no person who has received the amount otherwise than under protest shall be entitled to make such an application. Shri Basaria however, submitted that the payment of the amount of the award having not been paid in cash but by a cheque, would not amount to receipt of the payment. The petitioner cannot be deemed to have received the payment, goes the argument, when the same was encashed on 11-4-69. Petitioner having filed application Annexure 'B' immediately after receiving the cheque on the same day stating that he received the cheque registering his protest qua the sufficiency of the amount awarded, it was urged would not be deemed to have waived his right to file reference petition, more so the amount of compensation was not paid to the petitioner in cash on that day as in fact the amount was received in cash by the petitioner on 11-4-69 when the cheque was encashed from the Bank. I am unable to accept this contention. A careful reading of Section 31(i) and (ii) shows that the protest ought to be made prior to the receipt of the amount. In the instant case, the petitioner at the time of receiving the cheque, did not state that he received it under protest. The question accordingly would be whether the receipt of the cheque would amount to receipt of the compensation amount or not?