COLLECTOR LAND ACQUISITION Vs. TARBAN SINGH

JUDGEMENT

(1.) THIS IS AN APPEAL BY THE COLLECTOR AGAINST THE ORDER OF THE D.J.

(2.) JAMMU dated 10 -4 -72 enhancing the compensation of the land awarded by the Collector by Rs.17,026.43 including Jabirana and other charges.

(3.) IT appears that 240 kanals and 1 marla of land situate in village Paloura, Tehsil Jammu, belonging to different persons was acquired by the Collector for public purposes. So far as the respondent is concerned, his land was acquired to the extent of 40 kanals and 1 marla, being a part of the big chunks of land acquired by the Collector as indicated above. The Collector fixed some compensation regarding the other lands of which the land in dispute formed a part and the learned District Judge granted compensation at the rate of Rs. 2000/ - per kanal. Ultimately a compromise was effected in the High Court whereby the price of the land acquired was fixed at the rate of Rs. 1300/ - per kanal. After the land was acquired by the Collector, the respondent was paid a compensation of Rs. 39,148.88 by the Collector. Dis -satisfied with this amount the respondent made an application to the Collector for referring the matter to the civil court. In this way the reference was sent to the District Judge who in the first place fixed compensation at the rate of rupees 1300/ - per kanal on the basis of the compromise effected in respect of cases relating to other lands. On appeal to this court, however, the judgment of the District Judge was set aside and the case was remanded to him for fixing compensation after taking evidence of the parties. When the case was received back on remand by the District Judge, he examined two witnesses on behalf of the respondent claimant and the Collector did not choose any evidence to rebut that evidence. According to the witnesses examined by the District Judge, the actual market value of the land acquired was Rs. 7000 to 8000 per kanal but the judge found that version given by the witness was rather exaggerated and he accordingly determined the compensation at the rate of Rs.1300/ - per kanal because that was the rate fixed in respect of other land of which the land in dispute formed a part. In support of the appeal, Mr. Amar Chand has raised two points before us. In the first place it was submitted that the reference was incompetent in as much as the respondent claimant accepted the compensation paid to him by the Collector without any protest and therefore the reference was barred by the second proviso to S. 32 of the land Acquisition Act. Secondly it was contended that the District Judge in enhancing the compensation had adopted the figure of the compromise as yardstick. We would like to take up the first point relating to the competence of the reference. The admitted facts are that the award was made by the Collector on 9 -3 -68. The claimant sent an application under a certificate of posting to the Collector intimating his intension to receive the amount only under protest. This application was filed on 17 -4 -68. On 19 -4 -68 the respondent received the amount of compensation and submitted a receipt which does not bear any date. The Addl. Advocate General tried to challenge the existence of the application filed by the respondent, but in view of the evidence of the Collector himself, it is absolutely clear that the respondent did file such an application on 17 -4 -68, and no suggestion was ever made that the respondent had filed no such application. In view of this admitted position, it is not possible in this appeal to allow the counsel to raise the plea for the first time that no such application was filed by the respondent. The Addl. Advocate General, however, submitted that assuming that the application was filed on 17 -4 -68, unless the receipt given by the respondent showed that the amount was received under protest, the second proviso would come into effect and bar reference to the Civil Court. In support of his submission he relied on two decisions in Suresh Chandra V. LA Collector, AIR 1964 Cal. 283 and Somasundaram Vs. Dist. Collector, AIR 1967 A.P. 126. In order to understand the argument put forward by the Addl. Advocate General it may be necessary to quote in extenso the proviso which is the subject matter of interpretation before us. The second proviso to S. 32 (2) of the Land Acquisition Act runs as follows : -