IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA CMPMO No. 127 of 2005 alongwith CMPMO Nos.128 & 129 of 2005. Judgment reserved on: 15.12.2010. Date of Decision: 27.12.2010 1.Sh.Amru and others in CMPMO No.127 of 2005 2.Sh.Ram Dass and another in CMPMO No.128 of 2005 3.Sh.Tirath Ram in CMPMO No.129 of 2005 ..Petitioners. Versus Land Acquisition Collector and another (in all cases) ..Respondents. Coram: The Hon’ble Mr. Justice Deepak Gupta, Judge. Whether approved for Reporting? Yes For the Petitioner (s): Mr.Sh.Ajay Sharma, Advocate. For the Respondent(s): Mr.Vivek Singh Thakur, Addl.A.G. for R-1. Mr.Rahul Mahajan, counsel for R-2. Deepak Gupta, J. 1. The following interesting question of law arises for decision in these petitions: “What is the import and scope of the phrase ‘under protest’ as used in Section 31 of the Land Acquisition Act, 1894.” 2. For the purpose of these petitions, it would be pertinent to refer to Sections 18 and 31(1) & (2) of the Land Acquisition Act, 1894 (hereinafter referred to as the Act), which read as follows: “18. Reference to Court. (1) 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 2 for the determination of the Court, whether his objection be to the measurement of the land, the amount of the compensation, the persons to whom it is payable, or the apportionment of the compensation among the persons interested. (2) The application shall state the grounds on which objection to the award is taken: (a) If the person making it was present or represented before the Collector at die time when he made his award, within six weeks from the date of the Collectors award; (b) In other cases, within six weeks of the receipt of the notice from the Collector under Section 12, sub- section (2); or within six months from the date of the Collectors award, whichever period shall first expire. 31. Payment of compensation or deposit of same in Court. (1) On making an award under Section 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. (2) 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: 3 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 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.” 3. A bare perusal of Section 18 of the Act indicates that any person whose land has been acquired and who has not accepted the award of the Collector on any of the grounds mentioned in this section, can apply to the Collector to refer the dispute for determination to the Court. The proviso to this Section lays down that if the person was present before the Collector when the award was announced then the petition must be filed within six weeks and in other cases within six weeks of the notice of the award from the Collector under Section 12(2) or within six months from the date of the Collector’s award. 4. The second proviso to Section 31(2) provides that a person who has not registered his protest is not 4 entitled to file an application under Section 18 of the Act. 5. The Land Acquisition Collector has come to the conclusion that the applicants received the compensation without protest and therefore were not entitled to file the applications under Section 18 and as such these applications were rejected. 6. I have heard Sh.Ajay Sharma, learned counsel for the petitioners, Sh.Vivek Singh Thakur, learned Additional Advocate General and Sh.Rahul Mahajan, learned counsel appearing for the Railways. A number of judgments have been cited by both the sides. 7. A single Judge of the Calcutta High Court in Suresh Chandra Roy vs. The Land Acquisition Collector, Chinsurah, AIR 1964 Calcutta 283, held that the protest is not to be lodged in the application for reference under Section 18 but must be made by the applicant at the time of receiving the disputed amount of compensation. 8. A single Judge of the Punjab and Haryana High Court in Smt.Kailash Devi and another vs. State of Haryana and another, AIR 1971 P&H 353, held 5 that a protest against the awarded compensation must be recorded in the application, if any, for the amount as well as in the receipt for the sum. In fact, the learned Judge went on to hold that if an application under Section 18 containing the protest is filed but subsequently the amount of compensation is received without protest the application will become barred under second proviso of Section 31(2) of the Act. 9. A single Judge of the Kerala High Court in Lalithamma and others vs. Land Acquisition Officer and Special Deputy Collector, AIR 1974 Kerala 73, held that though the protest may not necessarily be in writing but it must precede the receipt of payment or at least be simultaneous. 10. A single Judge of this Court in Raja Ram vs. the State of H.P. and another, 19789 S.L.C. 53, was dealing with a similar question. In that case, the petitioner contended that he became aware about the award of the Collector only on May 24, 1974 when the compensation was paid to him. According to the petitioner, he had received the compensation under protest since he was illiterate 6 and could only append his signatures in Urdu or Landa script. He had asked the Land Acquisition Collector to record his protest. The learned Single Judge after discussing the entire law came to the conclusion that no protest was lodged because in the case of other persons who had received payment on the same day the protests were duly recorded in the register of payments. 11. A Division Bench of this Court in Lachhman Dass vs. State of H.P. and another, AIR 1988 HP 39, had the occasion to deal with a similar question. The Court held that having regard to the legal meaning and generally accepted connotation of the words ‘waiver’ and ‘estoppel’, the person against whom waiver is to be pleaded must be aware of his existing legal rights and privileges. It must be shown that he was aware of his rights and has waived for the same. The Court went on to hold that in the case of an illiterate or rustic person under disability, it would be legitimate to assume that there is an obligation on the part of the Land Acquisition Officer to draw the attention of the person to the provisions of Sections 18 & 31(2) of 7 the Act. This judgment is by a Division Bench and is very relevant for the decision of this case. The relevant portions of this judgment read as follows: “5.Having regard to the true legal meaning and the generally accepted connotation of the words “waiver” and “estoppel”, it is apparent that the person against whom waiver is to be pleaded must be aware of his existing legal right or privilege which, by his words, deed or conduct, he must be shown to have intentionally and voluntarily given up. In order that estoppel may operate against a person, it must be shown that the existence of a fact, or a certain state of thing, is represented by him or his authorized agent, by words or conduct, to another or to someone on his behalf, with the intention that such other person should act upon the faith of the representation and that the action, in fact, is accordingly taken by such person so as to alter his own previous position. 6.Against the background aforesaid, before the bar placed by the second proviso to sub-section (2) of S.31 of the Act can be invoked against any person, it must be shown by acceptable evidence: (i) that he was aware of his right to make an application for reference under S.18, (ii) that he knew also that such right would be defeated if he accepted the compensation without protest and (iii) that he nevertheless accepted the compensation voluntarily without registering any protest or his words or conduct were such as to tantamount to an intentional representation that he was accepting the compensation without any reservation. In the absence of proof of such facts and/or circumstances, the Court would be loath to 8 place the bar of the second proviso to sub-section (2) of S.31 in the way of any claimant. 7. One thing more. While dealing with an illiterate or a rustic person or a person under a disability, it would be legitimate to assume that it is an implied obligation on the part of the Land Acquisition Collector to draw his attention to the provisions embodied in S.18 and the second proviso to sub- section (2) of S.31 of the Act. There is no presumption that every person in this country knows the law; it would be contrary to commonsense and reason if it were so. (See M/s.Motilal Padampat Sugar Mills Co. Ltd.) (supra). It would be irrational and unrealistic to assume that a rustic or an illiterate villager must be aware of the provisions of S.18 read with the second proviso to sub-section (2) of S.31 of the Act and to infer from his conduct amounting to the acceptance of the compensation without any express protest an intentional relinquishment of his known legal right or a representation deliberately made to the effect that he would not prosecute the further remedy available to him by way of a reference under S.18 of the Act. 8. The petitioner, in the present case, is a rustic villager. There is no evidence to establish that the Land Acquisition Collector had explained to him the consequences of his acceptance, if any, of the compensation without protest. There is no evidence to establish also that even otherwise he knew the implications of such acceptance and he still accepted the compensation without any protest. From this point of view also, the ground on which the rejection order was passed cannot be upheld.” 9 12. In Ashwani Kumar Dhingra vs. State of Punjab, AIR 1992 SC 974, the apex Court held that in case the compensation awarded is accepted without protest the person concerned may loose his right to file a reference under Section 18 of the Act. 13. In Ajit Singh and others vs. State of Punjab and others, (1994) 4 SCC 67, the Apex Court held that the filing of the reference petition under Section 18 of the Act itself manifests the intention of the petitioner to lodge a protest and as such the protest is implied notwithstanding the acceptance or compensation. 14. In Land Acquisition Officer vs. Shivabai and others, AIR 1997 SC 2642, the Apex court held that if the parties were present on the date when the award was announced and the compensation was received without protest they were not entitled to seek any reference. 15. A Full Bench of the Andhra Pradesh High Court in The District Collector, Kakinada and others vs. P. Natabhushana Rao and others, 2004 (1) LACC 251, dealt with this question in detail. After considering 10 the entire law and the judgment on the point, the Full Bench held as follows: “26.The second proviso to Section 31 being in the nature of estoppel, necessarily, it will be for the person raising a plea of estoppel to establish before the Court necessary facts on which the rule of estoppel is to be applied. Therefore, it will be for the Collector or the State to point out any material, which will lead to an inference that the compensation was not received under protest. In the absence of any such material, when it is not expressly stated by the person interested that he was accepting the award or was accepting the amount of compensation without protest and an application is made under Section 18(1) of the Act within limitation, protest is implied. Invariably inland acquisition matters, persons interested are those who are illiterate and poor agriculturists. There is an implied obligation on the part of the Collector that he must apprise the persons interested of their right to have the amount of compensation determined by the civil court in cases they are not satisfied with the amount of compensation awarded. In the event of their not exercising their right and agreeing to accept the award or amount of compensation must be obtained. Experience has shown that usually compensation offered by the State to the persons interested are deprived of their property is not adequate and invariably on reference being made to the Civil Court, the amount is enhanced. Under these circumstances, unless it is positively shown that the persons interested were made aware of the right to have the compensation determined by a Civil court and they accepted the amount 11 without any demur, only in such a circumstances, an inference can be drawn that they never intended to seek reference. If a person interested is debarred from exercising his right conferred on him under Section 18 of the Act on the ground that he had not expressly stated that he is accepting under protest, the very purpose for which such right was conferred by the statute would become nugatory and illusory. We are, therefore, of the considered view that the law having laid down period of limitation within which reference can be sought and when an application is filed within the prescribed period of limitation, a very valuable right to seek reference for determination of the compensation cannot be taken away merely on a technical plea raised by the State who has deprived the said person of his right to hold the property.” 16. In my view there can be no manner of doubt that under Section 18 of the Act any party can make a reference within the period of limitation prescribed as long as he has not accepted the award. What is the meaning of the phrase “accepted the award”. This phrase would mean that the party does not dispute the correctness of the award. When a party files a petition under Section 18 of the Act it is straight away disputing the correctness of the award and showing its disinclination to accept the award. Therefore, where a reference petition is filed and thereafter 12 the compensation is accepted even if no protest is lodged then also the reference petition will lie. 17. In the present case, we are dealing with a situation when the reference petition was filed later and the amount had admittedly been received earlier without protest. 18. According to Sh.Rahul Mahajan, learned counsel for respondent No.2, in the present case the petitioners are debarred from seeking a reference since they had received the amount without protest and thereafter the applications for making reference were filed. 19. On the other hand Sh.Ajay Sharma, learned counsel for the petitioners, contends that if the reference is made within limitation it in itself is a protest. It is further contended that in case of persons, like the petitioners, who are agriculturists and virtually illiterate it is the duty of the Land Acquisition Collector to apprise such persons of their right to file reference applications and also of the fact that they must lodge a protest if they are not accepting the award. 13 20. As held by this Court in Lachhman Dass’s case (supra), an illiterate rustic villager cannot be expected to be aware of the provisions of Section 18 and the second proviso to sub section (2) of Section 31 of the Act. If parties are represented by counsel the position may be otherwise but when a poor illiterate villager goes to accept the amount of compensation the Land Acquisition Collector must explain to him that in case he accepts the amount without protest he will loose his right to file a reference petition. In case this is not done by the Land Acquisition Collector mere acceptance of the compensation amount by such person cannot mean that he has accepted the award without any protest. 21. In the present cases, the reference petitions were filed within limitation. The award was announced on 20.9.2010 and the applications were filed on 21.10.2010. Merely, because the petitioners did not formally lodge a protest at the time of accepting payment cannot deprive them of their right to file a petition under Section 18 of the Act. 14 22. In addition to what has been laid down in Lachhman Dass’s case (supra) there is another reason to decide the matter in favour of the petitioners. The legislature in its wisdom amended the Land Acquisition Act and inserted Section 28- A, relevant portion of which reads as follows: “28A. Re-determination of the amount of compensation on the basis of the award of the Court: (1) Where in an award under this Part, the Court allows to die applicant any amount of compensation in excess of the amount awarded by the collector under Section 11, the persons interested in all die other land covered by the Sallie notification under Section 4 subsection (1) and who are also aggrieved by the award of the Collector within three months from the date of the application to the Collector require that the amount of compensation payable to deep may be re- determined on the basis of the amount of compensation awarded by the Court: Provided that in computing the period of three months within which an application to the Collector shall be made under this sub section, the day on which the award was pronounced and the ‘lime requisite for obtaining a copy of the award shall be excluded.” 23. Therefore, a person who has not even made an application to the Collector under Section 18 of the Act can seek equal compensation after the compensation has been increased in the case of 15 some other person whose land has been acquired under the same notification. Therefore, there is no logic in preventing persons like the petitioners from seeking a reference. 24. In view of the above discussion, the petitions are allowed, the impugned orders of respondent No.2 are set-aside and the Land Acquisition Collector concerned is directed to make references to the District Judge in terms of Section 18 of the Land Acquisition Act, 1894. No costs. December 27, 2010 ( Deepak Gupta ), J. PV