SCA/16766/2007 1/7 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 16766 of 2007 With SPECIAL CIVIL APPLICATION No. 16767 of 2007 For Approval and Signature: HONOURABLE MR.JUSTICE A.M.KAPADIA HONOURABLE MR.JUSTICE R.H.SHUKLA ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================================= PATEL BHOLABHAI HARGOVANDAS & 1 - Petitioner(s) Versus SPECIAL LAND ACQ. OFFICER & 1 - Respondent(s) ========================================================= Appearance : MR AV PRAJAPATI for Petitioner(s) : 1 - 2. Ms. ARCHANA RAVAL, ASST. GOVERNMENT PLEADER for Respondent(s) : 1, NOTICE SERVED for Respondent(s) : 1 - 2. DS AFF.NOT FILED (N) for Respondent(s) : 1 - 2. ========================================================= CORAM : HONOURABLE MR.JUSTICE A.M.KAPADIA and HONOURABLE MR.JUSTICE R.H.SHUKLA Date : 24/01/2008 SCA/16766/2007 2/7 JUDGMENT ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE R.H.SHUKLA) Rule. Ms. Archana Raval, learned AGP, waives service of notice of rule on behalf of the respondents. 2. The present petitions have been filed by the petitioners herein for the prayer that writ of mandamus or any other writ, order or direction may be issued quashing and setting aside the impugned order dated 22.8.2005 passed by respondent no. 1-Special Land Acquisition Officer, ONGC Unit No. 2, Mehsana, Annexure-B, on the grounds mentioned in detail in the memo of petition, inter alia, that the applications filed by the petitioners under sec. 18 of the Land Acquisition Act, 1894 (hereinafter referred to as 'the Act') cannot be rejected on the ground that the petitioners have accepted the compensation without protest. Reliance has been placed on the judgment of the Hon'ble Gujarat High Court in the case of Kanjibhai Somabhai Vasava & anr. v. State of Gujarat & Ors, reported in 2004(1) GLR 563 and also in the case of Patel Natvarbhai Prabhudas & Ors. v. Special Land Acquisition Officer No. 1 reported in 1999(1) GLR 437. 3. The facts of the case, briefly summarised, are that the land of the petitioners have been acquired by respondent No. 1 ONGC on permanent basis and the SCA/16766/2007 3/7 JUDGMENT compensation has been awarded to the tune of Rs. 600/- per Are, which was, according to the petitioners, a meagre amount and, therefore, filed Reference Applications under Section 18 of the Act. 4. The said applications of the petitioners under Sec. 18 of the Act came to be rejected by the Special Land Acquisition Officer, ONGC, Unit No. 2, respondent No.1 herein, on the ground that the amount of compensation has been accepted by the petitioners without any protest and, therefore, reference cannot be made and the applications have been rejected. The applications filed by the petitioners are at Annexure-A. Affidavit-in-reply has been filed on behalf of respondent No. 1 contending, inter alia, that the petitioners have filed Land Acquisition Reference under sec. 18 of the Act in the year 1998 and the petitioners have accepted the amount of compensation without recording their objection as recorded by the Special Land Acquisition Officer, Mehsana. Therefore, it has been contended that the said applications have been rejected. It has also been communicated to the petitioners vide letter dated June, 1998 by Special Land Acquisition Officer, ONGC, Unit NO. 2, Mehsana that as the amount of compensation has been accepted without protest, applications for reference could not be accepted. Thereafter, again, as per Annexure-B, vide communication dated 22.8.2005, it has been reiterated that as the amount of compensation has been accepted without protest, the applications for reference SCA/16766/2007 4/7 JUDGMENT cannot be entertained. An affidavit-in-rejoinder has also been filed by the petitioners. 5. Learned advocate Mr. A.V. Prajapati for the petitioners submitted that as stated in the applications for reference under sec. 18 of the Act, the petitioners have not accepted compensation without protest and only a meagre amount of Rs. 600 per are was awarded and, therefore, the applications for reference under sec. 18 of the Act were filed. However, the same has not been entertained on the ground that they have accepted the compensation without protest, which is contrary to law, as laid down by the Hon'ble High Court as well as the Hon'ble Apex Court. In support of his submission, learned advocate Mr. Prajapati has referred to and relied upon the judgment in the case of Kanjibhai Somabhai Vasava & Anr (supra) and pointedly referred to the observation that “in order that an owner of land acquired under the Act may be able to apply for making a reference, it is not necessary that he must accept the award amount under protest – He may not accept any part of the amount, and can still insist for a reference.” The learned advocate has also referred to and relied upon the judgment of the Hon'ble High Court in the case of Patel Natvarbai Prabudas & ors. (supra) to substantiate his submission that it cannot be presumed that the petitioners have accepted the award because they have accepted the compensation without protest. SCA/16766/2007 5/7 JUDGMENT 6. We have heard learned advocate Mr. Prajapati for the petitioners as well as Ms. Archana Raval, learned AGP, for the respondents. 7. In view of the settled legal position referred to hereinabove, which squarely covers the point raised by the learned advocate for the petitioner, the contention raised in the affidavit-in-reply by the respondents cannot be accepted. This Hon'ble Court, in the case of Patel Natvarbhai Prabhudas & Ors. (supra), deliberating on this very issue, has observed that “merely because the claimants accepted the compensation, it cannot be presumed that they had accepted the award as contemplated under sec. 1 of the Act and the award cannot be challenged.” Therefore, even if the amount of award is accepted without protest, the applications filed within the prescribed period of limitation by itself is sufficient to indicate that the petitioners have not accepted the award and filing of such applications for reference would imply that the award has not been accepted by the original land owners-petitioners herein. In another judgment of this Hon'ble Court in the case of Kanjibhai Somabhai Vasava & anr.(supra), this Court, again dealing with the same issue, has observed, “thus, a person who does not accept the compensation under the award is entitled to make an application under sec. 18 of the Act, and he cannot be forced to accept the compensation under protest. SCA/16766/2007 6/7 JUDGMENT Non-acceptance of the award is sufficient for a person to enable him to make an application under sec. 18 of the Act.” In this judgment, this Court has also referred and relied upon the earlier judgment of the Hon'ble Apex Court in the case of Ashwani Kumar Dhingra v. State of Punjab, reported in 1992(2) SCC 592 that “in order to show that the person concerned has not accepted the award the claimants accept the compensation only under protest because once the compensation awarded in pursuance of the award is accepted without protest, the person concerned may lose his right to a reference for various matters mentioned in sec. 18 of the Land Acquisition Act. Therefore, where a person who refuses to accept the compensation or accepts it under protest can apply under Sec. 18 for a reference.” 8. There is another judgment of the Hon'ble Apex Court in the case of Ajit Singh and ors. v. State of Punjab & ors., reported in (1994) 4 SCC 67 dealing with the same issue and the Hon'ble Apex Court has observed in para 5, “therefore, the protest against the award of the Collector is implied notwithstanding the acceptance of compensation......”. 9. Therefore, in light of this settled legal position, in our view, the present petition deserves to be allowed. 10. The petition stands disposed of as allowed. The SCA/16766/2007 7/7 JUDGMENT communication at Annexure-B is hereby quashed and set aside. The respondents are further directed to refer the applications made by the petitioners under Sec. 18 of the Act to the Reference Court within a period of 4 weeks. Rule is made absolute accordingly. No order as to costs. (A.M. Kapadia, J.) (R.H. Shukla, J.) (hn)