JOSEPH Vs. SPECIAL TAHSILDAR

JUDGEMENT

(1.) HEARD Mr. Philip Mathew, learned Counsel for the petitioners and Mr. Mohamed Youseff, learned Additional Advocate General for the respondents.

(2.) THESE petitions have been placed before us pursuant to the order of reference dated 1st August, 2000 passed by a Division Bench. The questions of law, which arise for our determination, are as under: (i) Whether i n the scheme of the provisions of S. 31 r/w s. 18 of the Land Acquisition Act, 1894 (for short, the Act) is an application for reference maintainable under S. 18 of the Act, without the applicant proving that he had received the payment under protest as to sufficiency of the amount? (ii) What is the stage at which the protest contemplated by the first two provisos to S. 31 (2) has to be lodged? Can such a protest be lodged subsequently, after receiving the payment without protest? (iii) If the acceptance of compensation under protest is the sine qua non (as required by the second proviso to S. 31 (2)) to the making of an application under S. 18, can such a protest be made orally or whether it is necessary that such protest should always be in writing? (iv) If there is neither a written protest nor even an oral protest (assuming that oral protest is permissible) made at the time of receiving payment, is the mere making of an application under S. 18 of the Act, by itself, sufficient to infer that the claimant must be deemed to have accepted the amount under protest so as not to disentitle him of the remedy under S. 18 of the Act? In other words, can an oral protest be inferred to have been made merely because, subsequently, an application for reference has been made under S. 18 of the Act?

(3.) IN Writ Appeal No. 599 of 1994 decided on 6th August, 1998 (arising out of O. P. No. 1183/93) Special Tahsildar, Land Acquisition v. Kariyamparambil Raghavan (for short, "k. Raghavan's case"), a division Bench of this Court referred to the decisions of the Apex Court in (i)Wardington's case (supra) and (ii) Shivabai's case (supra) and came to the conclusion that an oral protest was necessary before the claimant could make an application under S. 18 of the Act. A perusal of the said two decisions of the apex Court would show that no person who had received the amount, otherwise than under protest, would be entitled to make an application under S. 18 of the act. IN other words, the receipt of the amount under protest is a condition precedent for making an application under S. 18.