STATE OF KERALA Vs. MARIAMMA RAICHEL

JUDGEMENT

(1.) THIS appeal is by the State against enhancement decreed on a reference under S. 18 of the Land Acquisition Act. 48. 75 cents of the respondent's land in S. No. 117/13 of Kottarakara village was acquired by the State, and its possession taken under the emergency clause on October 21, 1958.

(2.) THE Land Acquisition Officer's award was on August 18,1960, at Rs. 55/- per cent. On September 19, 1960, the respondent by the application, Ext. D2, sought payment of compensation thus awarded. THEreupon the Land Acquisition Officer gave her a cheque for the amount on September 24,1960; and, on the same day she filed an application for reference to the district Court for enhanced compensation and it was complied with. However, in the District Court objection was taken to the maintainability of the reference on the ground that the respondent had received the compensation without protest and was therefore debarred under second proviso to S. 28 (2) of the Travancore land Acquisition Act, II of 1089 (which corresponds to the second proviso to s. 31 (2) of the Indian Act, I of 1894) THE Additional District Judge, Quilon, overruled that objection holding that the application for reference made on september 24, 1960, amounts to compliance with the provisions of S. 31 of the land Acquisition Act and enhanced the compensation to Rs 110/- per cent. THE State has come up in appeal.

(3.) COUNSEL relied also on Kamalam v. The Special tahsildar (Land Acquisition) (1966-1 MLJ. 86), wherein it is observed: "no doubt S. 31 (2) (f the Act contemplates by one of its provisions that any person who is not satisfied with the quantum of compensation awarded may receive it under protest. But this does not mean that if any amount awarded is received as compensation without protest, the claimant concerned is denied his right under S. 17 to ask for a reference. We are unable to hold that the proviso is intended to have effect as a kind of estoppel against the claimant concerned exercising his right under S. 17. (S. 17 does not refer to any reference and therefore must be an obvious clerical error for S. 18 ). I regret inability to adopt the above dictum. There are three provisos to S. 31 (2) which run thus: "provided that any person admitted to be interested may receive such payment under protest as to the sufficiency of the amount: Provided also that no person who has received the amount otherwise than under protest shall be entitled to make any application under s. 18: Provided also that nothing herein contained shall affect the liability of any person, who may receive the whole or any part of any compensation awarded under this Act, to pay the same to the person lawfully entitled thereto. " I am afraid that the 1966-1 MLJ. 86 decision takes note of the first proviso only, in oversight of the second one which expressly debars a person who has received the compensation'otherwise than under protest' from making an application for reference under S. 18. However, it appears unnecessary to advert to S. 31 as I feel this case can be disposed of under S. 18 itself.