BASANT KUMAR JENA Vs. STATE

JUDGEMENT

(1.) Plot No. 6 under Khata No. 33 with a house standing thereon in village Kendupadar, District Phulbani, a tribal area, was jointly owned by the two uneducated tribals -- the petitioners Basant Kumar Jena and Upendra Jena. This property was acquired by the State Government for a public purpose under the Land Acquisition Act (the Act). Compensation for the entire property was determined by the Award at Rs. 10,146/-. Half of the amount was paid to petitioner Basant Kumar Jena on 5-9-1989 and half to Upendra Jena on 12-12-1990. Basant Jena had received the amount under oral protest, and Upendra Jena under written protest. Basant filed an application under Section 18 of the Act on 12-9-1989 to the Collector for making a reference to the Court for determination of the amount of compensation for the whole of the property. The Collector refused to make a reference on the ground that Basant had not received the amount under protest and, therefore, reference was incompetent in view of the second proviso to Section 31(2) of the Act and hence this petition under Section 226 of the Constitution.

(2.) Having regard to the above basic factual matrix, it seems to us that hypertechnical approach - not warranted by the provision -- has been adopted by the Collector. The petitioners were co-owners of the property since no division had taken place between them. Consequently none of them had definite right, title or interest in any particular portion of the property and each had a right, title and interest in every part and parcel of the property. Compensation was determined by the Collector in the Award at Rs.10, 146/- for the whole property. He, however, paid half and half compensation to the co-owners without the petitioners asking for such distribution. Within seven days of the receipt of the half amount, one of the co-owners filed an application under Section 18 of the Act pertaining to the whole of the property. Application undoubtedly lacks clarity as well as details. But, there can be no doubt that the application for reference was on behalf of both, as asserted by them in this petition. The promptitude with which the application was made clearly indicates that the applicant was not satisfied with the Award. Upendra received the amount later on, but did not file separate application which clearly shows that he bona fide believed that the second application for reference separately by him was not necessary. Upendra had received the amount much later and under written protest. It appears, by that time, some knowledgeable person must have apprised him of the risk involved in not putting the protest in writing.

(3.) The instant case pertains to rustic, uneducated Adivasis, who were quite obviously not aware of the fine intricacies of our procedural law regarding the manner of raising protest against insufficiency of compensation at the time of its receipt. The presumption that every one knows law is a myth. This is mare so in case of persons like the petitioners. The sole purpose behind second proviso to Section 31(2) of the Act is to bar a person from making a reference under Section 18 in case he has consciously waived his right. One, who waives a right is estopped from asserting it later on is the principle behind that proviso. Waiver is an intentional relinquishment of a known and existing right or privilege. Waiver is an inference to be drawn from the totality of circumstances, unless statute validly requires its expression in a particular manner. Having regard to the totality of the background, it seems very clear to us that this is not a case where the owners have waived the right to challenge the Award by accepting the amount in full and final settlement of the claim. In this background, the assertion of the petitioners that Basant Jena had accepted the amount under protest will have to be accepted.