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Ram Chander & Ors. v. The Collector/Special Land Acquisition Officer, Varanasi & Ors. - WRIT - B No. 40072 of 1999 [2003] RD-AH 365 (8 October 2003)


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Civil Misc. Writ Petition No.40072 of 1999

Ram Chander & Ors.                ......... Petitioners


The Collector/Special Land Acquisition Officer, Varanasi & Ors.

......... Respondents

Hon. Dr. B.S. Chauhan, J.

Hon. R.C. Pandey, J.

(By Dr. B.S. Chauhan, J.)

This writ petition has been filed against the order dated 07.04.1999 (Annex. 6)  passed by the Special Land Acquisition Officer, Varanasi, by which the application to make reference under the provisions of Section 18 of the Land Acquisition Act, 1894, hereinafter called ''the Act', has been rejected on the ground that the award made under Section 11 of the Act had been accepted by the applicants/petitioners without protest.

Facts and circumstances giving rise to this case are that a notification under Section 4 of the Act was made on 23.01.1991. Declaration under Section 6 of the Act was made on 27.05.1991. The award under Section 11 of the Act was made on 14.01.1992. Petitioners received the cheque in pursuance of the award on 27.01.1992. The said cheque was encahsed on 12.02.1992. Subsequently, application dated 14.02.1992 was made for reference under Section 18 of the Act. The said application has been rejected vide impugned order only on the ground that as the award had been accepted without protest, the reference cannot be made. Hence this petition.

The facts are not in dispute. Admittedly, the petitioners had taken the amount without making any protest in writing. The cheque received in pursuance of the award made on 14.01.1992 was encahsed on 12.02.1992. Till then, there was no protest against the award, i.e. quantum of compensation.  Subsequently, for the first time on 14.02.1992, an application for making reference was made  wherein it was mentioned that the petitioners were not satisfied with the quantum of compensation, as the same was not equivalent to the prevailing market price of the land on the date the Section 4 notification was issued.

The question does arise as to whether a person who received the amount of compensation in pursuance of the award without protest, can maintain an application for reference under Section 18 of the Act.

The issue involved herein is no more res integra. The Hon'ble Supreme Court has examined the issue in the case of Ajit Singh & Ors. Vs. State of Punjab & Ors., (1994) 4 SCC 67, wherein some persons had accepted the award under protest and some accepted without protest. Applications for making reference of those claimants, who accepted the award without protest, were rejected. However, in the references of other persons, compensation had been enhanced. The matters ultimately examined by the Apex Court, wherein, in respect of persons who received the compensation without protest, the Court held as under:-

"Inasmuch as the appellants have filed an application for reference under Section 18 of the Act that will manifest their intention. Therefore, the protest against the award of the Collector is implied notwithstanding the acceptance of compensation. The District Judge and the High Court, therefore, fell into patent error in denying the enhanced compensation to the appellants."

However, in Land Acquisition Officer Vs. Shivabai & Ors., AIR  1997 SC 2642, the Apex Court did not take note of the earlier judgment and expressed the contrary view as it held that if the claimant accepts the award without protest, he is not entitled to maintain the reference.

Further, issue arises in this case as if both the judgments of the Supreme Court are contradictory to each other, which one is to be followed.

A Full Bench of this Court in Ganga Saran Vs. Civil Judge, Hapur, Ghaziabad & Ors., AIR 1991 All. 114, considered this aspect and while deciding the case, it placed reliance upon the Full Bench judgment of Punjab and Haryana High Court in M/s. Indo Swiss Time Ltd. Dundahera Vs. Umrao & Ors., AIR  1981 P&H 213, wherein it has been held that the High Court must follow the judgment which appears it to lay down the law more elaborately and accurately, when there is a conflict in two judgments of Coordinate Benches of the Hon'ble Supreme Court. The said decision of the Punjab & Haryana High Court was approved and followed by the Bombay High Court in Special Land Acquisition Officer & Anr. Vs. The Municipal Corporation of Greater Bombay, AIR 1988 Bom.9.

The Full Bench of this Court has held that where it is not possible to reconcile the two judgments of the Apex Court of the Coordinate Benches, the High Court should follow the judgment examining as to which of the case decided by the Hon'ble Supreme Court lays down the law accurately.

The case requires to be examined in the light of the observations made by the Full Bench of this Court in Ganga Saran (supra). In Ajit Singh & Ors. (supra), the observations had been made without making reference to any statutory provisions, while the judgment in Shivabai (supra) is based on interpretation of the statutory provisions. Supreme Court has given emphasis to the plain wordings of the provisions of Section 18 (1) and proviso to sub-section (2) of Section 31 of the Act, which respectively read as under:-

"18 (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 for the determination of the Court..........

xx xx xx xx xx


Provided that any person admitted to be interest 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:........."

The aforesaid provisions make it clear that protest on behalf of the claimants is a condition precedent for maintaining the application for reference under Section 18 of the Act.

It is evident that subsequent judgment of the Hon'ble Supreme Court in Shivabai (supra) is more accurate being based on interpretation of the statutory provisions and deserves  to be followed.

Thus, in view of the above, it becomes evident that unless the compensation in pursuance of the award under Section 11 of the Act is accepted with protest, the claimant is not entitled to maintain the application for reference for determination of compensation by the Court under Section 18 of the Act and in view thereof, no fault can be found in the impugned orders.

Petition is devoid of any merit and accordingly dismissed. No costs.




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