Decided on July 05,1968



- (1.) THIS appeal is by the State against enhancement decreed on a reference under S. 18 of the Land Acquisition Act. 48. 75 cents of the respondent's land in S. No. 117/13 of Kottarakara village was acquired by the State, and its possession taken under the emergency clause on October 21, 1958.
(2.) THE Land Acquisition Officer's award was on August 18,1960, at Rs. 55/- per cent. On September 19, 1960, the respondent by the application, Ext. D2, sought payment of compensation thus awarded. THEreupon the Land Acquisition Officer gave her a cheque for the amount on September 24,1960; and, on the same day she filed an application for reference to the district Court for enhanced compensation and it was complied with. However, in the District Court objection was taken to the maintainability of the reference on the ground that the respondent had received the compensation without protest and was therefore debarred under second proviso to S. 28 (2) of the Travancore land Acquisition Act, II of 1089 (which corresponds to the second proviso to s. 31 (2) of the Indian Act, I of 1894) THE Additional District Judge, Quilon, overruled that objection holding that the application for reference made on september 24, 1960, amounts to compliance with the provisions of S. 31 of the land Acquisition Act and enhanced the compensation to Rs 110/- per cent. THE State has come up in appeal. Shri Moidu, appearing for the State, argues that the respondent's application dated September 19, 1960, for the compensation awarded was an unconditional acceptance of the award, as there was no protest therein as to its adequacy, and that even though the cheque was actually given on september 24, 1960, it relates back to the date of the application and the subsequent motion for reference under S. 18 is hit by the second proviso to s. 31 (2 ). There seems considerable force in this contention. It is further stated by the learned Government Pleader that the application for reference was filed in fact after the receipt of the cheque by the respondent. Two precedents cited by counsel for respondent deserve mention here. K. Krishna Rao v. Land Acquisition Officer and Revenue Divisional officer (AIR. 1960 Mysore 264) formulates the question real in a like case as "whether or not the petitioner has received the amount otherwise than under protest" and observes that the mere receipt of a cheque did not amount to receipt of compensation as the amount was "still lying with the government". But every judicial dicta has to be read Secundum subjectam materiam In that case the proprietor has not claimed the compensation, nor had done anything evincing an acceptance of the award on his part. The cheque went to him unsolicited, having been issued suo mote by the Land Acquisition Officer through the Tahsildar soon after he passed the award. The receipt of the cheque in that circumstance was not an act that proceeded from him: he was only submitting to the tender of the cheque placed on his hand. He did not cash the cheque. The first act that proceeded from his volition was the application for reference for enhanced compensation. Case is different when a person applies for a cheque for the amount due to him and is thereupon given a cheque. It is payment of the amount, (see Income Tax Commissioner v. M/s. Ogale Glass Works ltd. AIR. 1954 SC. 429 ). The dictum in AIR. 1960 Mysore 264 is therefore inapplicable to the facts of this case.
(3.) COUNSEL relied also on Kamalam v. The Special tahsildar (Land Acquisition) (1966-1 MLJ. 86), wherein it is observed: "no doubt S. 31 (2) (f the Act contemplates by one of its provisions that any person who is not satisfied with the quantum of compensation awarded may receive it under protest. But this does not mean that if any amount awarded is received as compensation without protest, the claimant concerned is denied his right under S. 17 to ask for a reference. We are unable to hold that the proviso is intended to have effect as a kind of estoppel against the claimant concerned exercising his right under S. 17. (S. 17 does not refer to any reference and therefore must be an obvious clerical error for S. 18 ). I regret inability to adopt the above dictum. There are three provisos to S. 31 (2) which run thus: "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 under 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 awarded under this Act, to pay the same to the person lawfully entitled thereto. " I am afraid that the 1966-1 MLJ. 86 decision takes note of the first proviso only, in oversight of the second one which expressly debars a person who has received the compensation'otherwise than under protest' from making an application for reference under S. 18. However, it appears unnecessary to advert to S. 31 as I feel this case can be disposed of under S. 18 itself. S. 18 of the Travancore Land Acquisition Act, XI of 1089, reads: "any person interested who has not accepted the award, may, by written application to the Collector, require that the matter be referred by the Collector, for the determination of the District Court " It is obvious that the person applying for reference under this section must be one "who has not accepted the award". Ext. D2, the application made by the respondent on September 19,1960, reads thus: [in pursuance of the notice given determining compensation in this case at Rs. 3401 pies 68 and to pay the same to me, (I)request that order be given to issue cheque to me for the amount awarded in this case]. This application expresses an acceptance of the award by the respondent, as it refers to the award and claims the amount under the award, without any expression of protest or challenge to its rectitude. As I read the application to express an acceptance of the award I have to find the respondent disqualified for moving an application for reference under S. 18; and on that sole ground the reference has to be held incompetent.;

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