FAIZ MUHAMMAD KHAN, J.-Some land situated in village Nawan Shehr Shumali, Tehsil and District Abbottabad, was acquired by the Collector, Land Acquisition, Hazara for the purpose of the extension of the training area of the Pakistan Military Academy, Kakul. After observing formalities and following procedure prescribed in the Land Acquisition Act, the Collector finally announced his award on 25-7-73.
2. Zardad Khan and four others, who are appellants before us, were not satisfied with the compensation amount assessed by the Collector in respect of the land belonging to them. They, therefore, applied to the Collector in writing, on 8-8-1973, requiring him to refer the matter as to the sufficiency of the compensation amount as also their entitlement to receive the compensation regarding the portion of the land specifically described in the application for the determination of the Court. In the meantime, however, by an application made on 4-10-1973, Zardad Khan and others, appellants before us, received from the Collector, on 5-10-1973, the compensation amount assessed by him without any protest.
3. The application filed on 8-8-1973 by Zardad Khan and others was in routine referred by the Collector to the Court for determination and the learned Senior Civil Judge, Abbottabad, who took cognizance of the matter, after allowing the parties to produce whatever evidence they liked, for and against their respective claim, decided the application, on 26-5-1977, by dismissing the same, on the ground that regarding a part of the claim the application was not maintainable, having not been made under section 30 of the relevant Act, and regarding the rest of the claim, it was not maintainable because the applicants had without protest accepted and withdrawn the compensation amount assessed by the Collector in respect of their land.
4. It is against the said decision of the lower Court that the appellants have come to this Court in Regular First Appeal, filed under section 54 of the Land Acquisition Act, assailing the decision of the Court below as being against law and facts and therefore not sustainable.
5. The claim of the appellants related to two matters : one that the land measuring one kanal one marla, represented by Khasra No. 2500, was wrongly shown in the revenue record and wrongly assessed by the Land Acquisition Collector as ownership of Mujahid Khan, respondent 4 before us, which in fact belonged to the appellants, and the second that the compensation amount assessed by the Collector Land Acquisition in respect of the land owned by the appellants was inadequate.
6. The learned Court below, on Issue No. 5, came to the conclusion that since the appellants had not filed application under section 30 of the Land Acquisition Act, their application made under section 18 thereof, relating to the claim reflected in that issue, and herein specified as number one, was not competent.
7. There are two sections in the Land Acquisition Act where under applications relating to matters arising out of an award can be made to the Collector by the interested persons. One is section 18 of the Act, which provides that when the award is not accepted by any interested person, and he objects to the measurement of the land, the amount of the compensation, the person to whom it :s payable, or the appointment of the compensation among the persons interested, he can apply in writing to the Collector, stating therein his objection, for referring the matter to the Court for determination. The other is section 30 of the Act, which lays down that if any dispute arises as to the apportionment of the compensation amount, or any part thereof, or as to the persons to whom the same or any part thereof is payable, the Collector may refer such dispute to the decision of the Court. The language employed in these two sections is so clear and unambiguous that it admits of re difficulty in understanding it.
8. To us it appears that the learned Court below has not correctly understood otherwise explicit provisions of both section 18 and section 30 of the Act. Section 30 of the Act is not intended to have the effect that where the dispute is regarding the apportionment of the compensation amount or any part thereof, or as to the person to whom the same or any part thereof is payable, the interested person can apply to the Collector only under this section, and not under section 18, for referring such dispute to the decision of the Court. If this interpretation, as accepted by the lower Court, is placed on section 30, then almost half of section 18 of the Act would become redundant.
Section 18 of the Act in very clear words provides that on an application in writing made by any interested person, when the objection is to the measurement of the land, the amount of compensation. The persons to whom it is payable, or the apportionment of the compensation among the persons interested, the Collector shall, when other condition specified in that section are satisfied, refer the matter to the Court for determination. In our opinion section 18 of the Act gives statutory right to the interested person to require the Collector to make reference to the Court in respect of the matters specified in that section, and when all the conditions mentioned in that section are satisfied, then the Collector ha no choice or option but to refer the matter to the Court for determination. Under section 30 of the relevant Act, however, no statutory compulsion is imposed on the Collector to refer the matter to the Court for decision. Her the Collector has the discretion to make or not to make a reference. H can even proceed suo motu and no period of limitation is prescribed for him for taking action under this section. It is, therefore, wrong to presume that if an application by an interested person in respect of the matters specified in section 30 is not made under section 30 of the Act, then his application under section 18 of the Act in respect of the same matters would stand defeated. We are, therefore, of the opinion that the decision of the Court below on Issue No. 5 is incorrect and is, therefore, reversed.
9. The decision of the learned lower Court on the second point raised by the appellants in their application, I.e. The in adequacy of the compen--sation amount, appears to be correct. The factual position as undisputed is that for the enhancement of the compensation amount the appellant had applied in writing to the Collector, under section 18 of the Act, for referring the matter to the Court for determination. This application was given to the Collector on 8-8-1973 and was pending before him when in the-meantime the appellants applied, on 4-10-1973, in writing to the Collector for disbursement of the compensation amount to them. The copy of this application on the record is Exh. D. W. 1/1. On the basis of this application a refund voucher for Rs. 1,35,263.33 was prepared by the office in favour 8 of the appellants (applicants) and submitted to the Collector (Land Acquisi-- tion) for signatures. The copy Exh. D. W. 1/2 on the file would show that the said amount was received by the appellants (applicants) on 5-10-1973. It is pertinent to note that neither on the application for the grant of the compensation amount, nor on the receipt which was written after receiving the amount, any protest was recorded by the appellants that the compensation amount was received under protest. It follows, therefore, that the appellant had withdrawn the compensation amount from the office of the Collector without making any protest in writing at the time of its receipt.
10. The learned counsel for the contesting respondents argued that on the plea raised before the lower Court that since the--appellants had withdrawn the compensation amount without protest, they were not entitled to any enhancement in that amount, the learned lower Court has rightly come to the conclusion that their application filed under section 18 of the Act was liable to dismissal. The learned counsel for the appellants, however, contended that once a proper application under section 18 of the Act for the enhancement of the compensation amount was made by the appellants, they were free to withdraw the compensation amount, without even mentioning in the application for withdrawal or in the receipt given by them in token of receipt of the amount that the amount was received under protest. He contended that clause (b) of subsection (1) of section 31 of the Act places a duty on the Collector to tender payment of the compensation awarded by him to the persons entitled thereto and the persons concerned can receive such payment without notifying their protest in writing to the Collector at the time when it is received.
11. It is true that clause (b) of subsection (1) of section 31 of the Act lays down that the Collector shall tender payment of the compensation) awarded by him to the persons entitled thereto, but the option is still left with the interested persons whether or not to receive the payment so offered. C If they have any objection to its sufficiency, then they can receive the payment under protest, as provided in the first proviso to subsection (2), of section 31 of the Act.
12. Except as otherwise provided in the Act, an award made by the Collector under section 11 of the Act becomes final when it is filed in the Collector's office, as specified in section 12 of the Act. By virtue of the provisions contained in section 18 of the Act, an interested person, who has not accepted the award, may, by a written application, require the Collector to refer the question as to the sufficiency of the amount of compensation, besides other matters, to the Court for determination. Upon such reference when made, the finality attached to the award under section 12 of the Act is suspended and only revives subject to the result of such reference, or the result of appeal which may be taken out against the award made by the Court. The decision made by the Court, on original or appellate side upon reference made under-section 30 of the Act, also affects the award, which attains finality only subject to such decision. Section 31 of the Act exclusively deals with the payment of the compensation amount. Subsection (1) thereof provides for tender of the compensation amount awarded by the Collector. Subsection (2) of this section lays down that if the persons interested do not consent to receive the compensation amount, 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 in the Court to which a reference under section 18 would be made. There are three provisos added to this subsection. First proviso thereof provides that any interested person may receive compensation `under protest' as to the sufficiency of the amount. The second proviso lays down that a person who has received the amount otherwise then under protest shall not be entitled to make any application under section 18 of the Act.
13. The learned counsel for the appellants argued that the language employed in the second proviso to subsection (2) of section 31 clearly shows' that if a person had received the amount otherwise then `under protest'; then he shall not be entitled to make any application under section
18. He argued that this proviso has no application to a case in which the person interested, like in the case in hand, may have already filed an application under section 18 of the Act as to the sufficiency of the amount and then receives the amount without any protest. He contended that the second proviso covers only those cases in which the amount is received without protest before any application under section. 18 is made. We are, however, not impressed by the argument of the learned counsel for the appellants. In our view the second proviso cannot be read in isolation. It has to be read along with the first proviso and has to be given the meaning in the light of the policy of the law of which it forms part. In our opinion the combined effect of both the provisos aforesaid is that where any interested person receives the amount without lodging the protest at the time of receiving the same, then not only he would not be entitled to make an D application under section 18 but would also not be entitled to continue of proceed with any application already made by him under the said section of law. This is the logical conclusion which would flow from the two provisos contained in subsection (2) of section 31 of the Act.
14. The learned counsel for the appellants further argued that since the appellants had filed application under section 18 of the Act regarding the inadequacy of the compensation amount, they should be deemed to have lodged the protest within the meaning of the first proviso to subsection (2) of section 31 of the Act. We are afraid, this contention of the learned counsel cannot prevail because the proper time for making the protest is the time when the payment is actually received from the Collector. It is on this occasion that the protest has to be recorded on the written receipt given in token of the receipt of the amount. We have carefully gone through the record and the appellants while receiving the compensation amount neither in their application nor in the receipt stated that they were receiving the amount under protest. Any application given by them under section 18 of the Act for the enhancement of the compensation amount cannot be regarded as `protest' within the meaning of the two provisos contained in subsection (2) of section 31 of the Act. In this view of the matter, we have the support of an authority from the Indian jurisdiction, reported as AIR 1964 Cal. 283 wherein it was held that "a protest ought to be made, firstly, in the application for receiving the disputed amount of compensation, if any such application is to be at all made and must be recorded in the receipt granted showing that the disputed amount of compensation money was accepted under protest". Since the petitioner in that case had failed to receive the compensation money under a properly. Recorded protest, the already filed application under section 18 was held as barred under section 31 (2), second proviso.
15. The learned counsel for the appellants drew our attention to the authority reported as PLD 1968 Kar. 697 and urged that it was on all fours. We are, however, of the view that the facts of that case are distinguish--able from the facts of the case before us. In that case the person concerned was given notice to receive the amount on the 30th of June, 1960 and the compensation amount was paid to him on the first day of July, 1960, leaving no choice with him to make a protest against the amount of compensation awarded to. Him by the Collector. Iii the present case the appellants had sufficient time to think about the matter and they had in fact filed an application before the Collector under section 18 of the Act. A few months later, however, they thought of receiving the compensation amount from the Collector, which they did receive without recording any protest as to its sufficiency. In such circumstances, they would be deemed to have waived their right to proceed with their application already made under section 18 of the Act. '
16. We are, therefore, of the view that the decision of the Court below on Issue No. 4 and additional Issue No. 5 is unassailable.
17. The Court below has decided Issue No. 2 in favour of petitioner No. 1. To that extent, therefore, the Court was wrong in dismissing the application filed by the appellants before us.
18. In the result, we modify the judgment and decree passed by the lower Court in that we hold that the compensation amount assessed by the Collector in respect of disputed Khasra No. 2500 is to be given to Zardad petitioner and not to Mujahid Khan respondent and with this modification the appeal is hereby dismissed. The parties are left to beat their own costs.