GIAN CHAND DHAWAN Vs. UNION OF INDIA

JUDGEMENT

(1.) These two petitions under Articles 226 and' 227 of the Constitution of India assail an order of the Land Ac- quisition Collector declining to make a reference under Section 18 of the land Acquisition Act, 1894, hereinafter to be referred as 'the Act' on the ground that the applications of the petitioners seeking a reference were barred by the provisions contained in the second proviso to Sec- tion 31 (2) of the Act.

(2.) The facts leading to the two petitions are identical although they arise out of the claim for a reference for compensation in respect of two different parcels of land. The land in dispute be- longing to the petitioners was acquired under the provisions of the Act pursuant to which the Land Acquisition Collector made a common Award, being No. 1928, on February 17. 1966. Apparently no notice of the aforesaid Award was sent to either of the petitioners as required by sub-section (2) of Section 12 of the Act. The petitioners in both the petitions came to know of the Award on October 9. 1967 and on the same day, the petitioners made applications to the Land Acquisition Collector for payment of compensation under protest. It is not in dispute that in all the applications it was mentioned that the payment of compensation was being sought under protest on the ground that the petitioners were entitled to higher compensation. These applications are Annexures 'B' and 'C' in one petition and 'B', 'C' and 'D' in the other. Pursuant to the aforesaid applications, the petitioners were paid and received compensation on or about May 14. 1968. It is a common case of the parties that the receipts executed by the petitioners did not men- tion that the payment was being received' under protest. On February 9. 1969. the petitioners sought reference of the matter under Section 18 (1) of the Act for deter- mination. The applications were turned down by the Land Acquisition Collector by the order, now sought to be impugned, on the ground that inasmuch as the re- ceipts executed by the petitioners, while receiving the amount of compensation, did not mention that the payment was being accepted under protest, the peti- tioners would be deemed to have waived their right to seek a reference by virtue of the provisions contained in the second proviso to sub-section (2) of Section 31 of the Act thereby disentitling the peti- to the reference. The Land Acquisition Collector sought support for this conclusion from a decision of the Calcutta High Court reported as AIR 1964 Cal 283.

(3.) Shri S. N. Chopra. who appears for the petitioners in both the petitions, contends that in determining if the petitioners had waived their right to seek an enhancement of compensation and had become disentitled to seek a reference by virtue of the second proviso to sub-section (2) of Section 31, the Land Acquisition Collector ignored the applications made by the petitioners on October 9, 1967 in which the petitioners specifically reserved their right to seek an enhancement of the compensation and made it clear that they were asking for payment of compensation offered by the Award under protest. Learned counsel further contends that the second proviso to Section 31 (2) merely incorporates a principle of waiver and that waiver was a matter of intention of the parties and that in determining as to what the intention of the parties at the time of receiving payment was the conduct of the party both at the time the amount is received as indeed prior thereto ought to be considered and that if the receipt of payment by the petitioners was considered in the context of the applications by which payment was sought, there was no room for doubt that the petitioners had sought and were receiving payment under protest. Learned counsel further contends that the petitioners having lodged their protest by the said applications, waiver could have been inferred from the act of receipt of payment only if there was any positive indication that the petitioners had given up the protest or had otherwise waived their right to seek a reference. Learned counsel sought to distinguish the decision of the Calcutta High Court which was relied upon by the Land Acquisition Collector and instead relied on Tara Chand v. The Land Acquisition Collector. (Delhi Shahdara). AIR 1971 Delhi 116; Md. Golam Ali Mina v. Land Acquisition Collector, AIR 1969 Cal 221 and a recent unreported judgment of Rangarajan. J., of this Court in C. W. 145-D/64, Rup Ram etc. v. The Land Acquisition Collector, decided on March 30, 1971. Learned counsel also drew my attention to some of the other decisions in which the question had been considered notably Mrs. Thomas v. The Collector of Madras, AIR 1958 Mad 186: Jaswant Singh v. State of Punjab. AIR 1972 Punj 31; Smt. Kailash Devi v. State of Haryana. AIR 1971 Pun] 353 and K. Krishna Rao v. Land Acquisition Officer and Revenue Divisional Officer, Coondapur. South Kanara. AIR 1960 Mys 264 and argued that the aforesaid decisions were distinguishable and in any event in so far as they appeared to have taken a contrary view, did not appear to be good law.