ANNAMMA CHACKO Vs. LAND ACQUISITION OFFICER

JUDGEMENT

(1.) THE lands belonging to the six petitioners herein were acquired under the provisions of the Kerala Land Acquisition Act, 1961, for short, the Act. THEy were served with notice of the award, under S. 12 (2 ). THEreafter they filed Exts. P1 to P4 applications, on different dates, disputing the adequacy of the compensation awarded, and requesting the 1st respondent to refer the matter to the competent court. Subsequent to these applications, the petitioners withdrew the amount of compensation from the Land acquisition Officer. THE petitioners did not formally state when they withdrew the amount that they were receiving the compensation under protest. THE first respondent rejected the applications for reference as per Ext. P5 order dated 7-3-1980. In this writ petition, the petitioners seek to quash Ext. P5 and pray for an appropriate direction to the ist respondent to refer the matter under S. 20 of the Act.

(2.) APPLICATIONS for reference were presumably rejected on the ground that the petitioners accepted the compensation from the Land acquisition Officer without recording any protest about its adequacy, despite the fact that the petitioners had earlier filed applications under S. 20 of the act, seeking reference of this question to the appropriate Civil Court . The petitioners' counsel submits that the earlier applications for reference are sufficient to protect them from the vice of the second proviso to S. 31 (2) of the Act and that since the said proviso does not indicate the manner in which the protest has to be stated, the applications for reference should in law be deemed to be a protest under the second proviso to S. 31 (2) of the Act Government Pleader on the other hand submits that unless protest is shown when compensation is received, the petitioners cannot get the protection from the said proviso. He rested largely on the decision reported in State of Kerala versus Mariamma Raichal (1968 KLT. 637) rendered by Madhavan Nair, J. which held that the receipt of compensation without protest incapacitated a party to move under S. 18 of the Act. That decision deals with a set of facts different from the one that I have before me, and hence the principle enunciated there cannot be said to be of general application. If it were so, I would have been persuaded to refer the question to a Division Bench.

(3.) NOW I shall consider the authorities cited before me. In 1968 KLT. 637 (supra),the facts are these: The award was on 18th August, 1960. On 19th September, 1960 application was made for payment of compensation awarded. The Land Acquisition Officer gave the claimant a cheque for the amount on September 24,1960. The claimant filed an application on the same day for reference to the District Court for enhancement of compensation. Ft was complied with. An objection was taken as to the maintainability of the reference subsequently. The Additional District Judge, Quilon, overruled the objection and the compensation was enhanced. In appeal the State contended that the claimant's application for cheque for the compensation awarded was an unconditional acceptance of the award since there was no protest as to its adequacy and that the acceptance of the cheque without protest rendered the subsequent motion for reference bad in law. This contention found acceptance at the hands of this court. The learned Judge was persuaded to accept this case for the reason that at the time the application for reference was made, cheque had been received without any protest by the claimant. Even so, he found a distinction in the decision reported in Krishna Rao v. L. A. Officer and R. D. Officer (AIR 1960 mysore 264 ). There, the application for reference was made after the claimant received the cheque sent to him by the Land Acquisition Officer without any request by him The learned Judge felt that there was a distinction between receipt of the cheque without any volition on the part of the claimant and its receipt after an application, and observed that in that case (Mysore case) the first act that proceeded from his volition was the application for reference for enhanced compensation. The learned Judge held thus: "this application expresses an acceptance of the award by the respondent, as it refers to the award and claims the amount under the award, without any expression of protest or challenge to its rectitude. As i read the application to express an acceptance of the award I have to find the respondent disqualified for moving an application for reference under S. 18; and on that sole ground the reference has to be held incompetent, The above observation clearly sets out the background in which that decision was rendered. There, the cheque application preceded the application for reference and the cheque application clearly contained statements accepting the award without any challenge to the adequacy of compensation. That case squarely 'falls within the vice of the 2nd proviso to S. 31 (2 ). Not so in this case.