KUSUMLATA KHANDELWAL Vs. LAND ACQUISITION COLLECTOR

JUDGEMENT

(1.) This appeal is by a claimant under an award made under the Land Acquisition Act 1 of 1894. In favour of the said claimant an award of compensation for acquisition of a property was made by the Collector of Calcutta on the 20th of September, 1963. On receipt of that notice the claimant made an application for a reference under Section 18 of the said Act on the 11th of November, 1963, on the allegation that the amount of compensation granted under the award was arbitrary and inadequate and the petitioners were unable to accept the same. On the same day, that is, 11th November, 1963 the claimants also made another application to the Land Acquisition Collector, Calcutta, in which application they referred to the notice dated the 25th of September, 1963 and also to the application for reference to civil court under Section 18 of the Land Acquisition Act and then said in paragraph 2 of the application that the petitioners were agreeable to accept the same award under protest without any prejudice to their rights and contentions in the reference under Section 18 of the Land Acquisition Act. Pursuant to that protest contained in the said application made on the 11th of November. 1963, a payment order was made and on the 3rd January, 1964, the petitioners through their authorised Advocate received payment of Rupees 11,186.95 P. out of the awarded sum of Rupees 11,516,95 P. after deducting the amount payable to the Commissioner of the Corporation of Calcutta for taxes is full satisfaction. For the sum received the said Advocate for the petitioners granted a receipt. In that receipt, however, there was no mention of the fact that the amount out of the awarded sum was received under protest.

(2.) Upon those facts the application made to the Land Acquisition Collector, Calcutta, for a reference under Section 18 of the Land Acquisition Act was rejected on the 27th June, 1965, obviously in view of the provision in the 2nd proviso under Sub-section (2) of Section 31 of the Land Acquisition Act, 1894. Against that order rejecting the application to make a reference under Section 18 the claimants moved this Court under Article 226 of the Constitution praying for a Writ in the nature of Certiorari for cancelling, quashing and setting aside the order D/- the 27th September. 1965 (?) and a Writ of Mandamus commanding the respondents to refer the matter to the civil court under Section 18 of the Land Acquisition Act, 1894. A rule nisi issued giving rise to Matter No. 186 of 1966 on the Original Side of this Court. At the hearing of the said matter affidavits were filed on behalf of both the parties, in which the facts appearing from the state of the record were recounted. In consideration of those facts our learned brother K. L. Roy, J. followed the view point in an unreported decision by Sinha, J. as his Lordship then was, in Civil Revn. No. 1925 of 1957 in the case of Atul Kumar Bhadra v. The State of West Bengal the judgment in which was delivered on the 19th December, 1960, by holding that the purported protest for acceptance of the money under the award not having been engrossed in the receipt that was granted, the reference under Section 18 is precluded. In that view of the matter by his judgment dated the 14th of January, 1970, K. L. Roy, J. discharged the Rule. Against that order of the learned trial Judge the present appeal has been preferred.

(3.) In support of the appeal learned Counsel appearing for the appellants Mr. Rawat has contended that the view of the law that was taken by the learned Judge Sinha, J. as his Lordship then was, in the unreported decision mentioned above, which the learned trial Judge K. L. Roy, J. rightly felt was binding on him, is an erroneous view. The learned Counsel has relied on a decision of the Division Bench of this Court (P. N. Mookerjee and A. K. Dutt, JJ.) in the case of Md. Golam Ali v. L. A. Collector. That decision was pronounced on the 2nd of May, 1968 and it says that not only the judgment in the unreported case delivered by Sinha, J., as his Lordship then was, but also another reported decision of a single Judge Banerjee. J. in the case of Suresh Chandra Roy v. The Land Acquisition Collector, Chinsurah, relying on that earlier decision of Sinha, J., were considered. But both those decisions were overruled by the Division Bench above-mentioned. Regarding the judgment in the case of the Division Bench observed as follows: