B.N.Banerjee, J. - (1.) An area of land belonging to the petitioner was acquired under the provisions of the Land Acquisition Act and two sums of money, namely, Rs. 57,236.65 nP. and Rs. 33.413,25 nP. ware awarded in favour of the petitioner. On July 9, 1958 the petitioner was informed that he was at liberty to withdraw the amounts on August 18, 1958. either himself or through an authorised agent from the Land Acquisition Collector's Office. On receipt of the above notice, the petitioner made an application, on July 18, 1958, praying that a reference be made to Court for determination of the amount of compensation. In the said application the petitioner, inter alia, stated that he would receive the compensation as awarded under protest on the date notified.
(2.) Thereafter, on August 12, 1958, the petitioner filed an application before the Land Acquisition Collector for withdrawal of the compensation money and therein authorised Sri Phanindra Nath Chakrabarty to receive the compensation money on his behalf. Again, on August 18, 1958, the petitioner prayed for issue of two bank drafts for the amounts of compensation in his favour. On January 30, 1959, Sri Phanindra Nath Chakrabarty received the compensation money in the form of bank drafts and duly executed two receipts therefor. Neither in the applications dated the 12th and 18th August, 1958, nor in the receipt dated 30th January, 1959, was there any repetition of the protest under which the petitioner was prepared to accept this compensation money. Thereafter, the petitioner received a letter, dated January 2, 1962, to the following effect: "With reference to your petitions dated 18-7-58, I am to inform you that the reference under Section 18 is barred under Section 31(2) of the L.A. Act. Section 31(2) of the Land Acquisition Act referred to in the letter reads as follows : "If they shall not consent to receive it, 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 Section 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: Provided also that no person who has received the amount otherwise than under protest shall be entitled to make any application under Section 18: Provided * * * *" Aggrieved by the order, the petitioner moved this Court, under Article 226 of the Constitution, praying for a Writ of Mandamus directing the respondent to mate a reference under Section 18 of the Land Acquisition Act and obtained this Rule.
(3.) The Special Land Acquisition Collector filed an affidavit-in-opposition and therein stated as follows : " * * * I say that the petitioner had not seated in his subsequent applications dated the 12th August, 1958, 18th August, 1958 and 2oth Feb. 1959 for the issue of the Bank Draft, that the payment of compensation would be accepted under protect nor was it so mentioned in the receipt given by the petitioner's authorised agent. * * * I submit that the non-mention of the clause 'Under Protest' in those subsequent applications would amount to waiver of the petitioner's right to accept payment of compensation under protest and as such the petitioner is estopped from challenging the order of the L. A. Collector refusing to make the reference." The petitioner filed an affidavit-in-reply and therein controverted the statement made in the affidavit-in-op position in the following language. "That this deponent says and submits that the petitioner's subsequent petition on 12-8-1958 following the said petition of reference was obviously with reference to the said undertaking and so also the petition dated 18-8-7958 and the letter of Authority dated 30-1-1959. * * * * * * This deponent says and submits that the allegations that there was a waiver on the petitioner's part and he is estopped from challenging the order of the Collector refusing to make the reference is neither true in fact nor proper in law.";