Jawari Lal vs Deputy Inspector General of Police Rajasthan Armed Constabulary and Another

S.N. Modi, J.—This revision application by Jawaharlal s/o Ganesh Mal is directed against the order of the Land Acquisition Officer, Jodhpur dated September 9, 1971.

The fact giving rise to this revision application are that certain land measuring 4 Bighas, 5 5/32 Bishawas located at village Mandore was acquired for a public purpose. An award was passed on 7-11-68. The petitioner moved an application before the Land Acquisition Officer (Collector), Jodhpur on 31st July, 1969 disputing the adequacy of the compensation given under the award and seeking a reference to the Civil Court u/s 18 of the Rajasthan Land Acquisition Act, 1953 (hereinafter called ''the Act''). The petitioner withdrew the amount of compensation awarded to him on 2-7-70. No mention was made in the receipt given by the petitioner that he was withdrawing the amount under protest. The Land Acquisition Officer (Collector; refused to make a reference to the Civil Court on the ground that by withdrawing the amount without any protest, that petitioner lost his right to have his case referred to the Civil Court u/s 18 of Act. It is against this order that the petitioner has preferred this revision application.

I have heard learned Counsel for the parties and gone through the record of the case. The question that arises in this revision application is whether by withdrawing the amount without formally saying that the amount was being withdrawn under protest the petitioner has lost the right of having his claim referred to the Civil Court. The law on the subject is found in sub-section I and 2 of Section 31 of the Act. These sub-sections read as follows:

(1) On making an award u/s 11, the Collector shall tender payment of the compensation and costs, if any, awarded by him to the persons interested entitled thereto according to the award, and shall pay it to them unless prevented by some one or more of the contingencies mentioned in the next sub-section.

(2) If they shall not consent to receive, or if there be no person competent to alienate the land, or if there be any dispute as to the title to receive the compensation or as to the appointment of it, the Collector shall deposit the amount of compensation and costs, if any in the Court to which a reference u/s 16 would be submitted:

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 u/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 or costs awarded under this Act, to pay the same to the person lawfully-entitled thereto.

Sub-section (1) of Section 31 requires the Collector Land Acquisition Officer) to tender payment of the compensation amount awarded by him to the person interested and to pay the same unless he is prevented by any of the contingencies mentioned in sub-Section (2). Sub-section (2) enumerates the contingencies One of them being that the person interested does not give his consent to receive the compensation amount. The first proviso to sub-Section (2) enables any person admitted to be interested to receive the compensation under protest. The second proviso debars the person who has received the compensation amount otherwise than under protest to make an application u/s 18 of the Act. The Land Acquisition Officer (Collector) in the present case rejected the application for making a reference to the Civil Court acting under second proviso to sub-Section (2) of Section 31 of the Act. But this rejection of the application seems to be erroneous. In the present case, the petitioner before withdrawing the amount of compensation had objection to the adequacy of the compensation and also sought reference to be made of this claim to the Civil Court u/s 18 of the Act. What the second proviso to Section 31 prevents is the making of an application u/s 18 of the Act. When such an application has already been made, the subsequent withdrawal of the amount of compensation must be deemed as if the withdrawal was made under protest. The fact that the petitioner had sought reference of his claim prior to his withdrawal of the amount, is a positive indication that the petitioner was objecting to the validity and correctness of the award. There is no particular form for indicating the protest under the Act or under the Rules. Such protest can either be explicit or can be inferred by necessary implication from the circumstances. Viewed from this angle, the making of the application for reference before withdrawal of the amount, leads to a reasonable inference that the amount was withdrawn under protest. In my view the requirements if the first proviso to sub Section (2) of Section 31 are substantially complied within the present case. There could therefore, be no bar for the petitioner''s claim being referred to the Civil Court u/s 18 of the Act.

In the result, I allow the revision application with costs and direct the respondent No. 2, the Land Acquisition Officer (Collector) PWD (B & R) Jodhpur, to make a reference u/s 18 of the Act to the appropriate civil court.