Research › Search › Judgment

Rajasthan High Court · body

2014 DIGILAW 2061 (RAJ)

Mahadev v. State

2014-12-09

MOHAMMAD RAFIQ

body2014
Hon'ble RAFIQ, J.—Since the controversy involved in all these writ petition is common, the facts of the S.B. Civil Writ Petition No.3218/2003 are taken note of for deciding all the writ petitions. 2. The writ petition (3218/03) has been filed challenging the order dated 22.6.2002 passed by the Land Acquisition Officer, who has declined the request of the petitioners to make a reference to the Civil Court for enhancement of compensation under Section 18 of the Land Acquisition Act, 1894 on the premise that even though, petitioners filed application for making reference within limitation prescribed by Section 18 of the Act, but received the amount of compensation without any protest. The land holder whose land is acquired and who accepted the compensation, is not entitled to request for making the reference u/Sec. 18 of the Act for enhancement of compensation. 3. Shri Sudesh Bansal, learned counsel for the petitioners has submitted that the award in the present case was passed on 5.5.1994 and notice for publication of award was received on 20.8.1994 and the petitioners filed application for making reference on 12.9.1994 under Section 18 for enhancement of compensation. The application of the petitioners was thus filed within the period of six weeks from the date of award, which is the limitation period provided by proviso (a) to sub-section (2) of Section 18 of the Act. In fact, when the Land Acquisition Officer required the respondent-Housing Board to file reply to the said application, they expressed that no reply was required to be filed. It is contended that since passing of the formal order of making reference was taking time, petitioners in between submitted an application before the Land Acquisition Officer in writing by letter dated 22.9.1994 submitted that in such matters, reply of Housing Board was not required. Petitioners submitted the application to the Officer on Special Duty, who is also working as Land Acquisition Officer in the department of Urban Development and Housing that since the award has been passed and the application for reference has been filed, the petitioners be paid the compensation under protest. Learned counsel has submitted that the petitioners have signed the proforma of receipt dated 14.12.1996 (Annexure-6) in which there were certain blank columns in the printed proforma of receipt and those columns were filled in. However, most of the petitioners, being illiterate had put their thumb impressions. Learned counsel has submitted that the petitioners have signed the proforma of receipt dated 14.12.1996 (Annexure-6) in which there were certain blank columns in the printed proforma of receipt and those columns were filled in. However, most of the petitioners, being illiterate had put their thumb impressions. It is therefore contended that when already the petitioners had filed the application for making reference wherein they also submitted that whatever compensation is awarded may be paid under protest, their are not writing 'under protest' on the proforma receipt should not be taken to defeat their application for reference. The order rejecting the application of the petitioners for reference is therefore perverse and the impugned order dated 22.6.2002 deserves to be set aside. 4. Shri Sudesh Bansal, learned counsel in support of his arguments has relied on the judgment of this Court in Jawari Lal vs. Deputy Inspector General of Police, Rajasthan-RLW 1977 page 140 and judgments of Supreme Court in Ajit Singh & Ors. vs. State of Punjab & Ors.- (1994) 4 SCC 67 and Steel Authority of India Ltd. vs. Sutni Sangam & Ors.- (2009) 16 SCC 1 . 5. Shri J.K. Singhi, learned senior counsel opposed the writ petition and submitted that words written “under protest” in the application submitted before the Land Acquisition Officer would not be suffice to prove that the petitioners have actually received the amount of compensation under protest. This could be accepted only if the petitioners in the receipt receiving compensation specifically mentioned that they were receiving the amount of compensation under protest. The Land Acquisition Officer was fully justified in rejecting the application for reference under Section 18 of the Act because the petitioners did not pass on the receipt of receiving compensation specifically indicating that this was being accepted under protest. Having unconditionally received the amount of compensation and passed on the receipt to that effect, the petitioners have waived their right of getting the reference made to the civil court for enhancement of compensation. The action of the Land Acquisition in rejecting their application was fully justified. 6. I have given my anxious consideration to the rival submissions and perused the material on record. 7. The action of the Land Acquisition in rejecting their application was fully justified. 6. I have given my anxious consideration to the rival submissions and perused the material on record. 7. The respondents even though have opposed the writ petitions, but have not disputed the fact that petitioners before receiving the awarded compensation have submitted application to the Land Acquisition Officer on 11.12.2007 requesting him that the amount of compensation awarded by him should be ordered to be paid to them together with interest under protest. While the application was submitted on 11.12.2007, the receipt admittedly was signed by the petitioners on 14.12.1996. It was on that date that the order sheet was drawn by the Land Acquisition Officer. In the receipt, some of the petitioners have put their thumb impressions whereas certain others have signed, but the manner in which the signatures have been made, clearly indicates that they were also semi-literate persons. The receipt is not handwritten by them. However, it is prepared on a printed proforma, which was offered by the Housing Board itself. Names of the petitioners, particulars of the land, the date of awarded amount of compensation and other particu-lars have all been filled in the blanks of this receipt. The approach of the Land Acquisition Officer in the facts of these cases in assuming that the petitioners received the compensation 'without protest' is therefore wholly perverse and erroneous. When already the application submitted by them requesting for payment of compensation awarded, indicates that they are accepting the compensation under protest, not indicating separately the words “under protest” in the receipt would not be fatal to the rights of the petitioners to get that application decided on its merits. Besides, the petitioners having accepted the fact of acquisition, in any case, are entitled to whatever amount of compensation originally awarded by the Land Acquisition Officer because the very fact that they submitted application for making reference pre-supposes that they are not questioning the correctness of the acquisition and that they are more concerned with the enhancement in the amount of compensation. Therefore, the amount of compensation originally awarded to them by the Land Acquisition Officer has, in any case, to be paid to them. 8. Therefore, the amount of compensation originally awarded to them by the Land Acquisition Officer has, in any case, to be paid to them. 8. This Court in Jawari Lal, supra had the occasion to deal with the identical issue in which the petitioner before withdrawal of the amount of compensation moved an application disputing adequacy of compensation and sought a reference to the Civil Court. That matter was related to a land measuring 4 bighas 5 biswas located in village Mandore, which was acquired for public purpose by award dated 7.11.1968. The petitioner therein moved the application before the Land Acquisition Officer, Jodhpur on 31.7.1969 disputing the adequacy of compensation given under the award and seeking reference to the Civil Court under Section 18 of the Rajasthan Land Acquisition Act, 1953 soon after the petitioner withdrew the amount of compensation awarded to him on 2.7.1970. No mention was made in the receipt given by him that he was withdrawing the amount under protest. The Land Acquisition Officer refused to make a reference to the Civil Court on the ground that by withdrawing the compensation amount without any protest, the petitioner lost the right of reference to the Civil Court under Section 18 of the Act. In those facts, it was held by this Court as under: “Sub-sec. 1 of sec. 31 requires the Collector (Land Acquisition Officer) to tender payment of the compensation amount awarded by him to the person interested and to pay the same unless he is prevented by any of the contingencies mentioned in sub-sec. 2. Sub-sec. 2 enumerates the contingencies. One of them being that the person interested does not give his consent to receive the compensation amount. The first proviso to sub-sec. 2 enables any person admitted to be interested to receive the compensation under protest. The second proviso debars the person who has received the compensation amount otherwise than under protest to make an application under Sec. 18 of the Act. The Land Acquisition Officer (Collector) in the present case rejected the application for making a reference to the Civil Court acting under second proviso to sub-sec. 2 of sec. 31 of the Act But this rejection of the application seems to be erroneous. The Land Acquisition Officer (Collector) in the present case rejected the application for making a reference to the Civil Court acting under second proviso to sub-sec. 2 of sec. 31 of the Act But this rejection of the application seems to be erroneous. In the present case, the petitioner before withdrawing the amount of compensation had objected to the adequacy of the compensation and also sought reference to be made of his claim to the Civil Court under sec. 18 of the Act. What the second proviso to sec. 31 prevents is the making of an application under sec. 18 of the Act. When such an application has already been made, the subsequent withdrawal of the amount of compensation must be deemed as if the withdrawal was made under protest. The fact that the petitioner had sought reference of his claim prior to his withdrawal of the amount is a positive indication that the petitioner was objecting to the validity and correctness of the award. There is no particular form for indicating the protest under the Act or under the Rules. Such protest can either be explicit or can be inferred by necessary implication from the circumstances. Viewed from this angle, the making of the application for reference before withdrawal of the amount, leads to a reasonable inference that the amount was withdrawn under protest. In my view the requirements of the first proviso to sub-sec. 2 of Sec. 31 are substantially complied within the present case. There could, therefore, be no bar for the petitioner's claim being referred to the Civil Court under Sec. 18 of the Act.” 9. The Supreme Court in Ajit Singh, supra also had the occasion to deal with a matter where claimants received the amount of compensation awarded by the Land Acquisition Officer under protest and submitted application for reference under Section 18 of the Act. It was held that claimants having filed application for reference under Section 18 of the Act would manifest their intention, therefore, the protest against the award of the Collector is implied, notwithstanding the acceptance of compensation. In Steel Authority of India Ltd., supra, also the Supreme Court followed the judgment in Ajit Singh, supra. 10. In view of above, the writ petitions deserve to succeed and are accordingly allowed. In Steel Authority of India Ltd., supra, also the Supreme Court followed the judgment in Ajit Singh, supra. 10. In view of above, the writ petitions deserve to succeed and are accordingly allowed. The impugned order dated 22.6.2002 passed by the Land Acquisition Officer is set aside and the matter is remanded back to the Land Acquisition Officer for passing appropriate order of making reference on application of the petitioners under Sec. 18 of the Act within a period of three months from the date petitioners approach him along with copy of this order. 11. Office to place a copy of this order in each connected petition.