' AIMAL MIAN, ACTG. C. J.-By this common judgment we intend to dispose of the two petitions, namely C. P. Nos. 109/84 and 110/84. The brief facts leading to the filing of the above petitions are that the petitioners owned certain land in 'Monza Pathra' Tehsil Hub, District Lasbella, which was acquired under Notifications, dated Ist June, 1980 and 2nd July, 1980. The land Acquisition Officer gave his award on 9th April, 1981 awarding compensation at the rate of Rs, 5,000 per acre.
2. It is the case of the petitioners that they had filed application on 26th May, 1981 (Annexure 'D' to both the petitions) requesting for reference to the District Judge. It further seems that on 27th July, 1981, the petitioners received the compensation amount. Thereafter, on 30th November, 1983, both the petitioners filed separate applications. It may b e pertinent to reproduce herein below, pages 2 and 3 of the above applications, which read as follows :-
(2) That the petitioners are the persons interested in the land described above being the owners thereof and since the petitioners have been aggrieved by the aforesaid Award on the amount of Compensation determined by the Collector, the petitioners vide their application submitted on 26th May, 1981 requested the Collector to refer their cases to civil Court of competent jurisdictions under sections 18 and 12 of the Land Acquisition Act, 1894 on the question of determination of compensation. Photostat copy of the said application is enclosed herewith and marked as Annexure 'A'.
(3) That the petitioners' "Attorney on 26th November, 1983 enquired in the Office of the District and Sessions Judge at Khuzdar about the reference cases of the petitioners when he came to know that although other cases covered by the aforesaid Award were referred but the cases of the petitioners were in advertently omitted."
' It is the case of the petitioners that they had not received any reply to the above applications but from the record which was made available by the learned Advocate-General today in Court, it seems that a reply was given on 15th December, 1983 which reads as follows :- {{URDU TEXT}} ' The petitioners have filed the above two petitions, in which they have prayed inter alia, for a direction to the respondent to refer the matters to the District Judge under section 18 of the Land Acquisition Act, 1894 (hereinafter referred to as the 'Act'). The above case was admitted for regular hearing on 29-10-1984 after notice to the Advocate-General. The case had come up for regular hearing before us on 12th June, 1985, when at the request of the learned Advocate-General we had adjourned the case for today in order to enable him to seek instructions on the questions :
(i) When the petitioners had filed applications for referring the case to the Court ; and
(ii) When the payments were received by the petitioners.
' The respondent has not filed any counter-affidavit as the Collector concerned has gone to U. S. A.
For training but the office file has been made available. From the above office file, it seems that the original of the above application allegedly filed on 26-5-1981 by the petitioners is not on record in respect of both the petitioners but it appears that the above application dated 30th November, 1983 jointly filed by the above two petitioners is on record, and also the reply thereto, reproduced hereinabove.
3. It has been urged by Mr. Tahir Muhammad Khan, learned counsel for the petitioners that since both the petitioners have made averments o oath before this Court that factually the above application was filed on 26th May, 1981 and as there is no rebuttal to the above averment on oath, the above factual position is to be accepted as correct. We have also noticed that in the above reply dated 15th December, 1983, the respondents Office did not raise the plea that the photostat copy annexed to the above application dated 30th November, 1983 was not factually filed or that it contained the signature of one "M. Saeed" who had never worked in the respondent's department.
' In this view of the matter, we will have to examine the case on the assumption that factually the petitioners had filed the above application on 26th May, 1981. It is also an admitted position that both the petitioners had received the payment subsequent to the filing of the above application on 26th May, 1981.
4. In support of the above petitions, it has been urged by Mr. Tahir Muhammad Khan, learned counsel for the petitioners that since the petitioners after the giving of the Award had filed the above application on 26th May, 1981 for getting the case referred to the District Judge, the acceptance of the payment by the petitioners subsequent to the filing of the above application, is deemed to be under protest in terms of subsection (2) of section 31 of the Act. He has also referred to the following cases :-
(i) Shanta Bai v. Special Deputy Collector, Land Acquisition, Hyderabad AIR 1971 Andh. Pra.
117.
(ii) The Collector, Jabalpur and another v. Kama! Kumar Jain and others AIR 1973 Madh. Pra.
288.
(iii) Kusumlata Khandelwal and another v. Land Acquisition Collector and another AIR 1974 Cal.
396.
(iv) Wali Ahmad v. Collector, Land Acquisition and others 1985 SCMR 224.
5. Before taking up the cases cited on the point it may be pertinent to quote subsections (1) and (2) of section 31 of the Act which read as follows :-
(1) On making an award under section II. 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 subsection.
(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; 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."
' It may be noticed that under subsection (1) the Collector on making an award under section 11 is required to tender the payment of compensation awarded by him to the person interested entitled thereto according to the award and to pay the same unless prevented by one of the contingencies referred to in subsection (2). It may further be noticed that if the persons entitled to receive the payment do not consent to receive it or when there is no person competent to alienate the land or when there is a dispute as to the title to receive the compensation or as to the apportionment of it by virtue of subsection (2) of the above quoted section 31 the Collector is required to deposit the amount of compensation in Court which a reference under section 18 of the Act would be submitted. It may also be noticed that the first proviso which is pertinent to decide question in issue provides that provided any person admitted to be interested may receive such payment under protest as to the sufficiency of the amount.
6. The point in controversy is as to whether the petitioner had accepted the payment under protest in terms of the above proviso (i) to subsection (2) of section 31. In this regard, it may be pertinent to refer to the cases cited by the learned counsel for the petitioner :- "(i) Shanta Bai v. Special Deputy Collector, Land Acquisition, Hyderabad AIR 1971 Andh. Pra. 117, in which a learned Single Judge of the Andhra Pradesh High Court held that the first proviso to subsection (2) of section 31 of the Act does not provide any particular form of protest under which the withdrawal is to be made. But filing of an application pointing out the inadequacy of the compensation prior to the receipt of the compensation amount is sufficient. Iii) The Collector, Jabalpur and another v. Kamal Kumar Jain and others AIR 19.3 Madh. Pra.
288. In this case, a D. B. Of Madhya Pradesh High Court took the view that where a land holder after filing of an application for reference of his claim before the date of withdrawal of the compensation amount, receives the compensation it would be deemed that he had received the same under protest.
(iii) Kusumlata Khandelwal and another v. Land Acquisition Collector and another AIR 197 Cal. 396, in which the owner of the land before receiving the amount of compensation filed an application for getting the case referred under section 18 of the Act, simultaneously by another letter of even date expressed his willingness to accept the amount under protest. However, at the time of acceptance of the payment, no protest was recorded. It was held by a D. B of the Calcutta High Court on the basis of the above facts that the payment was factually received under protest.
(iv) Wali Ahmad v. Collector, Land Acquisition and others 1985 SCMR 224. In the above case, the facts were that the owner of the land had filed an application for getting the case referred to the District Judge under section 18. Thereafter he received the compensation upon execution of a bond in which it was stated by him that he would receive the payment under protest, but no protest was recorded on the receipt given by him against the payment. The Honourable Supreme Court of Pakistan accepted the appeal of the owner of the land and set aside inter alia the judgment of the High Court and remitted the case to the reference Court for decision. It may be advantageous to reproduce herein below the relevant observation, which reads as follows :- "In any case, the fact that the appellant had already applied for reference showed that he had not accepted the award. Under section 31 of the Land Acquisition Act, the Collector is to tender payment of the compensation awarded by him to the persons interested entitled thereto unless "they shall not consent to receive it", in which case he shall deposit the amount in the Court to which a reference would be submitted. However, this is subject to the proviso that 'any person admitted to be interested may receive such payment under protest as to the sufficiency of the amount.' The fact that the appellant had immediately after the award, moved his application for reference would clearly show that he had not consented to receive it. Even otherwise, it is clear from the bond he had furnished, that he had taken the amount under protest and that being so, the absence of a mention of the same in the receipt register is mere inadvertence and a technicality. Both the Courts below have thus fallen in error by relying only on that document without taking into consideration the bond and the fact that the reference had already been made and was pending at the time of the payment. Their decision, therefore, is clearly by ignoring relevant material and as such not sustainable."
7. The ratio decidendi of the above cited cases of Andhra Pradesh, and Madhya Pradesh seems to be that if an owner of the land whose land is acquired before receiving the amount of compensation, files an application seeking reference under section 18 of the District Judge, the subsequent acceptance of the payment of compensation can be deemed to have been under protest in terms of proviso (1) of subsection (2) of section 31. The facts of the above Calcutta case and also of the above Supreme Court of Pakistan case seem to be somewhat different from the instant case as in the Calcutta case, the owner of the property had sent a letter on the same day when he filed an application for getting the matter referred to the District Judge under section 18, stating therein that he was willing to accept the compensation under protest whereas, in the above Supreme Court case, in the bond which was executed, it was stated by the recipient of the compensation that he was receiving the same under protest, but the other two cases referred to herein-above, on all fours are applicable to the present cases.
8. It may be pertinent to state that the references in respect of the three other owners of the land have already been made by the respondent to the District Judge under section 18. Since in the instant cases, it appears that the petitioners had filed applications on 26th May, 1981 for seeking reference to the District Judge under section 18 the subsequent acceptance of the compensation by them can be treated as under protest.
' We would, therefore, allow the petitions with no orders as to cost and direct the respondent to refer the cases to the District Judge at Khuzdar.