KANNAN Vs. LAND ACQUISITION OFFICER

JUDGEMENT

(1.) The petitioner is the appellant In connection with the re-alignment of N.H. 17 an extent of O.1619 hectares of land comprised in R.S. No. 23/3A of Mazhappilangad amson desom belonging to the appellant was acquired under the Kerala Land Acquisition Act, 1894 (for short the Act) along with some other properties as per award No. 2/96 dated 15.4.1996. The notice of award was issued on 15.4.1996 and it was got served on the appellant on 16.5.1996. He handed over possession of the property acquired on 18.5.1996 and received the compensation on 20.5.1996 without lodging any written protest. On 22.5.1996 a petition sent by registered post on 21.5.1996 by the appellant was received by the Tahsildars office claiming a total compensation of Rs. 26,60,000/- for the property acquired and requesting to refer the matter to the competent court for re-determination of compensation. Ext. P1 is the application preferred by the appellant claiming re-determination of compensation. The said application stands rejected as per Ext P2 proceedings of the respondent Tahsildar on the ground that under S.18 of the Act read with proviso to S.31(2) of the said Act, no person who has received the amount otherwise than under protest shall be entitled to make any application for redetermination of compensation under S.18. According to the Tahsildar, the compensation amount of Rs. 4,17,719/- awarded for the holding acquired from the appellant was received by him on 20.5.1996 without lodging or recording any protest and consequently the application for reference to the court received from the appellant on 22.5.1996 is not entertainable as per the provisions of the Act. Ext. P2 was challenged before the District Collector as per Ext. P3 petition which in turn was forwarded to the respondent herein who passed Ext. P4 rejecting Ext. P3 holding the findings contained in Ext. P2. Aggrieved thereby, the petitioner moved this Court in O.P. 3558/97 out of which this Writ Appeal arises. A learned single Judge of this Court dismissed the O.P. on the ground that the appellant having received the compensation amount without any protest has forfeited his right of reference. Hence this appeal.

(2.) Having heard learned counsel for the appellant learned Government Pleader, we are of the opinion that the judgment of the learned single Judge cannot be legally sustained. Basic facts are not in dispute. The date of issuance of award is 15.4.1996 which was served on the appellant on 16.5.1996. Possession of the property was handed over on 18.5.1996 and the appellant received compensation on 20.5.1996 without lodging any written protest However, it is not disputed that the very next day, ie., on 21.5.1996 the appellant sent Ext. P1 application under S.18 of the Act for referring the matter to the court for re-determination of compensation which is seen received by the respondent on 22.5.1996. The question then is whether the rejection of Ext. P1 on the specious plea that under S.18 of the Act read with proviso to S.31(2) no person who has received the amount otherwise than under protest shall be entitled to make any application for re-determination of compensation deserves scrutiny of law. The specific case set up by the appellant in the original petition is that he received the compensation amount on 20.5.1996 under oral protest. However, this is denied by the respondent. But, the mere fact that the respondent has denied the fact that the appellant has lodged any protest at the time of receiving the compensation does not inspire confidence in us having regard to the fact that the very next day itself the appellant has sent Ext. P1 application under S.18 of the Act for referring the matter to the competent court for determination of just compensation for the property acquired from him. The fact that the appellant has sent Ext. P1 on the very next day itself amply proves that he would not have received the amount on 20.5.1996 without any protest. In as much as the appellant has filed the application for reference the very next day of receiving the compensation amount will manifest his intention. Therefore, as held by the Apex Court in the decision reported in Ajith Singh v. State of Punjab ( 1994 (4) SCC 67 ) protest against the award of the Collector is implied notwithstanding the acceptance of compensation. The learned single Judge there fore fell in to a manifest error in dismissing the Original Petition relying on the decision reported in Wardington Lyngdoh and Others v. Collector, Mawkyrwat ( AIR 1995 SC 2340 ). Having bestowed our anxious consideration, we are of the opinion that the principle laid down therein cannot have any application to the factual matrix of the present case. There is a clear finding that the plea of oral protest set up is belied by the written agreement Besides, the persons interested received compensation under agreement which distinguishes the facts of that case from the present case.