S.A. NUSRAT, J.--This appeal, by leave of this Court, arises out of the judgment of the Peshawar High Court, Circuit Bench, Abbottabad, dated 7-12-1981, whereby a regular first appeal of the appellants in a land acquisition matter was dismissed.
2. The brief facts of the case are that the land bearing Khasras Nos. 2472, 2477, 2478, 2500, 2502 to 2506, in all measuring 16 Kanals 1 Marla, situated in Nawanshehar Shumali, tehsil and District Abbottabad belonging to the appellants, was acquired by the Collector, Land Acquisition, for the purpose of extension of the training area of Pakistan Military Academy Kakul. After following the requisite legal procedure the Collector finally made his award on 25-7-1973. The appellants, feeling dissatisfied with the award, made an application under section 18 of the Land Acquisition Act (hereinafter referred to as the Act), to the Collector requiring him to refer the matter to the Court for determination of the amount of compensation as also their entitlement to receive compensation in respect of the Khasra No. 2500 to the exclusion of one Mujahid Khan and for compensation covering the entire area of Khasra No. 2477 to the exclusion of village Shamilat owners represented by respondents Nos.4 to 7. While the application for reference was still pending, the appellants applied on 4-10-1973 to the Collector for disbursement of the amount of compensation lying with them. Accordingly, they were paid the amount of compensation as determined in the award on 5- 10-1973. The appellants, objection petition was later referred to the Senior Civil Judge, Abbottabad for decision. On the pleadings of the parties, several issues were framed in the case by the learned trial Judge who, after recording the evidence of the parties, dismissed the application of the appellants in toto as respects their claim for compensation on the ground that it was not maintainable in view of the provision contained in the second proviso .To subsection (2) of section 31 of the Act, as the appellants had, without protest, accepted and withdrawn the compensation amount assessed by the Collector in respect of their land. The claim of ownership of the appellants in respect of Khasra No.2500 was, however, disposed of on the basis of compromise arrived at between the appellants and Mujahid Khan. The decision was challenged by the appellants in regular first appeal before the High Court which was dismissed as per impugned judgment affirming the view expressed as aforesaid by the learned Senior Civil Judge on the relevant provision of the Act.
3. Leave to appeal was granted to examine the correctness of the view taken by the learned High Court with regard to the interpretation of the second proviso to subsection (2) of section 31 of the Act holding that the reference application made under section 18 of the Act of the Collector at the instance of the appellants was not competent inasmuch as they had subsequent to filing of the application for reference accepted compensation on 5th October, 1973, without protest'. It was contended by the learned counsel for the appellants that in terms of section 31 of the Act as amended in its application to the Province of N. -W. F. P., it was obligatory on the part of the Land Acquisition Collector to offer the amount of compensation awarded by him to the claimants, and in this view of the matter the receipt of compensation by the appellants after having already moved the Collector under section 18 of the Act, had no effect on the maintainability of the reference. This contention is without any force because no amendment was made in subsection (2) of section 31 of the Act and the two provisos thereto and the same remained fully applicable. Section 18 of the Act provides that: "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, whether his objection 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."
Section 31 of the Act provides for tendering payment of the compensation awarded by the Collector to the persons entitled thereto according to the award. The subsection (2) of section 31 then provides that:- "If they shall not consent to receive it, or if there be no persons 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 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.
4. It was next contended by the learned counsel for the appellants that since the appellants had filed application under section 18 of the Act regarding inadequacy of the compensation, amount, they should be deemed to have lodged protest within the meaning of the second proviso to subsection (2) of section 31 of the Act. The above-noted contention raised on behalf of the appellants was rejected by the learned High Court recording a finding as under:- "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 alongwith 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 any application under section 18 but would also not be entitled to continue or 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."
For holding such view the learned High Court found support from a decision from the Indian jurisdiction reported as Soresh Chandar Roy v. LandAcquisition Collector AIR 1964 Cal. 283. In that case it was held that application for reference under section 18 was not a proper document wherein to record a protest under which the compensation amount is to be received. It was pointed out by the learned counsel for the appellants that the above view was later changed by the same High Court in the case of Md. Golam A.I Mirza and another v. Land Acquisition Collector and another AIR 1969 Cal. 221 and the decision in the case of Soresh Chandar Roy was dissentedfrom. According to the facts of this case the claimants had applied for the payment of compensation amount specifically stating that they would receive the same under protest. The receipts of which were ultimately given, were endorsed on the back of such applications. In the circumstances, it was held that such reception of payments must be related to the applications themselves and must be held to be linked with the same and could not but be held to be receipts under protest. However, the case nearer to the one in hand in Collector Jabalpur and others v.
Kamal Kumar Jain and others AIR 1973 Madh. Pra. 288 where a land-holder had already filed his application for reference of his claim before the date of withdrawal of compensation amount. In the circumstances, it was held that receiving of the amount of compensation subsequently would be deemed to be under protest, even though the claimant may sot have mentioned the words "under protest" in his application for withdrawal of the amount, if any such application was to be at ail made, or in the receipt granted showing that the amount had been received and accepted. In yet another case reported as Amar Singh v. Onion of India AIR 1974 Delhi 34, it was held that second proviso to section 31(2) of the Act did not apply to a case of acceptance of compensation amount subsequent to filing of application and the receipt of amount in such a case is subject to the reference and there was no waiver of right for enhanced compensation. Similar view taken in the case of Shanta Bai v. Special Deputy Collector Land Acquisition AIR 1971 Andh. Pra. Holding that the very fact that the petitioner' had earlier filed a petition for reference was indication positive of he protest and it was not further necessary to withdraw money un er protest as the requirement of the first proviso to subsection (2) of section 31 of the Act was sufficiently complied with. This Court had also the occasion to examine the same question, though in the background of somewhat different facts in the case of Wali Ahmad v. Collector Land Acquisition and others 1985 SCMR 224 and depreciating technical interpretation of the relevant provisions contained in section 31 of) he Act, it was held that the fact that the appellant had immediately, after the award, moved his application for reference indicated that he had not consented to receive the amount of compensation. The view taken in the above cases is based on just and reasonable interpretation the relevant provisions of the Act and we would hold accordingly. No decision to the contrary was referred to by the learned counsel for the other side.
8. As a result of the above discussion, we would allow this appeal with costs, set aside the judgment of the learned High Court and remit the case to the learned Senior Civil Judge,"
Abbottabad, for fresh disposal of the reference on merits in accordance with law, after notice to the parties.