PAILY Vs. SPECIAL TAHSILDAR LA

JUDGEMENT

(1.) THESE are connected writ appeals. Common questions arise for consideration in these cases. The petitioner in O. P. No. 2842 of 1990 and the petitioners in O. P. No. 2720 of 1990 are the appellants in Writ Appeal No. 380 of 1990 and Writ Appeal No. 467 of 1990 respectively. Briefly stated, the relief sought in both the O. Ps. is for the issue of a writ of mandamus directing the land acquisition authorities to refer the case of the petitioners to a competent court to determine the compensation payable to them.

(2.) THE relevant facts in these cases are as follows: Both the cases arise in connection with proceedings under the Land Acquisition Act. In O. P. No. 2842 of 1990, the award was passed on 29-4-1978. Notice of the award was given to the petitioner to appear on 3-5-1978. THE petitioner was asked to be present again on 6-5-1978. On that day cheque, representing the compensation, determined by the authority, was issued to the petitioner. THE petitioner states that he protested about the quantum of compensation orally. THE application for reference under S. 20 of the Kerala Land Acquisition Act was sent by post on 9-3-1978, wherein the petitioner has stated that he received the amount under pro test and so not satisfied with the award and the matter may be referred to court. THE application was received by the Land Acquisition authority on 10-5-1978. In O. P. No. 2720of 1990 the award was passed on 22-8-1978. THE petitioners were asked to appear on 26-8-1978. Accordingly they appeared before the 1st respondent and obtained the cheque on 26-8-1978. On the same day they filed Ext. P3 application, containing their protest regarding the compensation amount and requested the Land Acquisition Officer to refer the matter to court. It is common ground that though applications for referring the matter to court were filed in both the cases, orders on the petitions were not communicated to the petitioners. It is nearly 12 years since the cheques were received by the petitioners and the applications claiming enhanced compensation were filed before the appropriate authority. According to the petitioners, they were not furnished with replies or orders passed on their reference applications. But they came to know that in some of the similar cases in the locality, which were the subject matter of the acquisitions simultaneously made with that of the petitioners, references have been made recently to court. THE petitioners approached the Special Tahsildar, Periyar Valley Irrigation project, Alwaye, who was the Land Acquisition Authority for all these cases and he expressed his inability to refer the cases of the petitioners without the court's direction, as, in his view, the cheques were received by the petitioners without protest. THE petitioners state that they protested orally at the time of receipt of the cheque and the assertion to the contrary and consequent refusal to refer the matter to the court is unauthorised, unreasonable and illegal. THE O. Ps. Were heard and disposed of by a learned single Judge of this Court by the common judgment, dated 6-4-1990. THE learned single Judge held that the petitioners in both the cases received the amount due under the awards without making any protest, that the claimants themselves applied for the cheque and obtained the same in the absence of protests and that the applications for references made on a later date are hit by the second proviso to S. 33 (2) of the Kerala Land Acquisition Act. In this view, it was held that the petitioners are not entitled to have their matters referred to the Court. THE learned Single Judge took the view that the contemporaneous document, namely, the application for cheque, did not disclose any protest so the plea that the petitioners made an oral protest cannot be accepted. THE o. Ps. Were dismissed. THE judgment of the learned Single Judge is reported in varkey Pathrose v. State of Kerala (1990 (2) KLT 10 ). Aggrieved by the judgment of the learned Single Judge, the petitioners in the O. Ps. Have come up in writ appeals.

(3.) THE learned Single Judge held that acceptance of a cheque amounts to acceptance of payment, and if no protest is made at the time of its acceptance, no application will lie under S. 20 of the Kerala Land acquisition Act for referring the matter to Court. THE learned Single Judge also held that the question as to whether the amount was received under protest or not should be decided by the Land Acquisition Officer and it is within his jurisdiction to decide as to whether the second proviso to S. 33 (2) is attracted to the instant case. Counsel for the appellants argued that the crucial aspect that arises for consideration is whether the bar specified in the second proviso to S. 33 (2) applies to the instant cases and whether it has been so shown or demonstrated by the respondents (Land Acquisition authority)? appellants' counsel stressed the fact that this crucial aspect was omitted to be noticed, as the learned Single Judge assumed that the receipt of the amount due under the awards without making any protest simultaneously, must in all cases act as a bar as specified in the second proviso to S. 33 (2) of the Kerala land Acquisition Act. Appellants' counsel further contended that this assumption is an over-statement of the law, without due regard to the facts and circumstances appearing in the cases and also the irresistible inference flowing from a perusal of the relevant files.