A.M.AHMADI - (1.). A poor ignorant agriculturist who received the amount of compensation fixed under the award of 28th March 1968 is sought to be denied due compensation in respect of his land acquired by the State Government on the hypertechnical ground that the protest under the second proviso to sec. 31(2) of the Land Acquisition Act 1894 (hereinafter referred to as (the Act) was not made in writing before he accepted the said amount. Sec. 31 (1) provides that on making an award under sec. 11 the Collector shall tender payment of the compensation 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. Sub-sec. (2) next provides that if the persons interested do not consent to receive the amount of compensation awarded to them 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 apportionment of it the Collector shall deposit the amount of the compensation in the court to which a reference under sec. 18 would be submitted; provided that any person admitted to be interested may receive such payment under protest as to the sufficiency of the amount. Then comes the next proviso with which we are presently concerned and it reads as under :
"Provided also that no person who has received the amount otherwise than under protest shall be entitled to make any application under sec. 18".
It is the case of the respondent State that the amount awarded to the appellant under the award of 28th March 1968 was received without protest and hence the reference under sec. 18 of the Act was clearly incompetent in view of the second proviso reproduced above. In order to examine the merit of this contention a few facts may be noticed.
(2.)The appellant was the owner of S. No 507/1 of village Khimana admeasuring about 17 gunthas 8 Annas on the date of notification under sec. 4 of the Act. In course of time notification under sec. 6 of the Act was issued and the applicant was served with a notice Ex. 45 dt. 4th September 1967 under sec. 9 of the Act for fixation of compensation in respect of the acquired land. On 28th March 1968 the award was pronounced fixing the compensation in respect of the acquired land of the appellant at Rs. 241.50 inclusive of solatium. This amount was received by the appellant on 3rd April 1968 under the receipt Ex. 46. There is no mention in this receipt Ex. 46 that the amount was received by the appellant under protest. The appellant claimed a reference under sec. 18 of the Act on 24th September 1968 and the Assistant collector Radhanpur made a reference to the District Court Banaskantha at Palanpur as desired by the appellant. That reference was numbered as Reference No. 1/70 and was heard by the learned Assistant Judge Banaskantha at Palanpur who dismissed the reference by his order dated 20th September 1972 taking the view that the amount of compensation was not received by the appellant on 3rd April 1968 under protest and hence reference was not competent in view of the second proviso to sec. 31 (2) of the Act. It is this view of the learned Assistant Judge which is assailed by the original applicant of reference No. 1/70 in appeal before this court.
(3.)It may at once be mentioned that the case of the appellant at the stage of evidence in the said reference was that before he received the amount in question on 3rd April 1968 he had told the Mamlatdar Kankrej that he was not satisfied with the amount of compensation fixed under the award but the Mamlatdar informed him that he may claim additional compensation in the Palanpur court and in the meantime accept the compensation amount fixed under the award of 28th March 1968. It is further the say of the appellant that he was told by the Mamlatdar Kankrej that his protest would be kept pending and hence he accepted the amount in question on 3rd April 1968 Therefore the case of the appellant in the reference was that he had not accepted the amount of compensation without raising a protest as to the sufficiency of the said amount and that the payment of Rs. 241. 50 Ps. was received on 3rd April 1968 under protest by him. It is therefore the say of the appellant that the case is not governed by the second proviso to sec. 31 (2) of the Act and the learned trial Judge was wrong in concluding that as the protest was not made in writing it could not be said that the amount was received under protest within the meaning of the second proviso reproduced earlier. It is further the contention of the appellant that the learned trial Judge was wrong in rejecting the evidence of the appellant and his two witnesses Galabji Khodaji Ex. 39 and Meruji Shambhuji Ex. 41 on the question that the amount of compensation was accepted by the appellant after raising a protest as regards its sufficiency. The learned trial Judge fixed the additional amount of compensation which he would have awarded to the appellant but for this technical bar at Rs. 2994. 60 Ps. with interest at 4% per annum from the date of taking possession of the land till the date of payment.