Paripoornan, J.

1. These are connected writ appeals. Common questions arise for consideration in these cases. The Petitioner in O.P. No. 2842 of 1990 and the Petitioners in O.P. No. 2720 of 1990 are the Appellants in Writ Appeal No. 380 of 1990 and Writ Appeal No. 467 of 1990 respectively. Briefly stated, the relief sought in both the O.Ps. is for the issue of a writ of mandamus directing the land acquisition authorities to refer the case of the Petitioners to a competent court to determine the compensation payable to them.

2. The relevant facts in these cases are as follows: Both the cases arise in connection with, proceedings under the Land Acquisition Act. In O.P. No, 2842 of 1990, the award was passed on 29th April 1978. Notice of the award was given to the Petitioner to appear on 3rd May 1978. The Petitioner was asked to be present again on 6th May 1978. On that day cheque, representing the compensation, determined by the authority, was issued to the Petitioner. The Petitioner states that he protested about the quantum of compensation orally. The application for reference under Section 20 of the Kerala Land Acquisition Act was sent by post on 9th May 1978, wherein the Petitioner has stated that he received the amount under protest and so not satisfied with the award and the matter may be referred to court. The application was received by the Land Acquisition Authority on 10th May 1978. In O.P. No, 2720 of 1990 the award was passed on 22nd August 1978. The Petitioners were asked to appear on 26th August 1978. Accordingly they appeared before the 1st Respondent/and obtained the cheque on 26th August 1978. On the same day they filed . Ext. P-3 application containing their protest regarding the compensation amount and requested the Land Acquisition Officer to refer the matter to court. It is common ground that though applications for referring the matter to court were filed in both the cases, orders on the petitions were not communicated to the Petitioners. It is nearly 12 years since the cheque were received by the Petitioners and the applications claiming enhanced compensation were filed before the appropriate authority. According to the Petitioners, they were not furnished with replies or orders passed on their reference applications. But they came to know that in some of the similar cases in the locality, which were the subject matter of the acquisitions simultaneously made with that of the Petitioners, references have been made recently to court. The Petitioners approached the Special Tahsildar, Periyar Valley Irrigation Project, Always, who was the Land Acquisition Authority for all these cases and he expressed his inability to refer the cases of the Petitioners without the courts direction, as, in his view, the cheques were received by the Petitioners without protest. The Petitioners state that they protested orally at the time of receipt of the cheque and the ascertion to the contrary and consequent refusal to refer the matter to the court is unauthorised, unreasonable and illegal. The O.Ps. were heard and disposed of by a learned Single Judge of this Court by the common judgment, dated 6th April 1990. The learned Single Judge held that the Petitioners in both the cases received the amount due under the awards without making any protest, that the claimants themselves applied for the cheque and obtained the same in the absence of protests and that the applications for references made on a later date are hit by the second proviso to Section 33(2) of the Kerala Land Acquisition Act. In this view, it was held that the Petitioners are not entitled, to have their matters referred to the Court. The learned Single Judge took the view that the contemporaneous document, namely, the application for cheque, did not disclose any protest and so the plea that the Petitioners made an oral protest cannot be accepted. The O.Ps. were dismissed. The judgment of the learned Single Judge is reported in Varkey Pathrose v. State of Kerala 1990 (2) K.L.T. 10. Aggrieved by the judgment of the learned Single Judge, the Petitioners in the O.Ps. have come up in writ appeals.

3. We heard counsel for the Appellants. Mr. George Kuruvilla and Mr. R.V. Nair, as also counsel for the Respondents, Senior Government Pleader Mr. V. Ramachandran. The learned Single Judge held that since the Petitioners received the amount due under the awards otherwise than under protest, the applications filed by them under Section 20 of the Kerala Land Acquisition Act were clearly not entertainable or barred by the second proviso to Section 33(2) of the Land Acquisition Act. Section 20 and Sub-sections (1) and (2) of Section 33 of the Kerala Land Acquisition Act are as follows:

20. 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 for the determination of the Court, whether his objection be to the measurement of the land, the amount of the compensation, the person to Whom it is payable, or the apportionment of the compensation among the persons interested.

(2) Application shall state the grounds on which objection to the award is taken:

Provided that every such application shall be made-

(a) if the person making it was present or represented before the Collector at the 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 tinder Sub-section (2) of Section 12 or within six months from the date of the Collectors award, whichever period shall first expire.

33. Payment of compensation or deposit of the same in Court.- (1) On making an award under Section 11 or Section 16, 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 any one or more of the contingencies mentioned in Sub-section (2).

(2) If they do 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 20 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 further that no person who has received the amount otherwise than under protest shall be entitled to make any application under Section 20:

Provided also that nothing herein contained shall affect the liability of any person, who may received the whole or any part of any compensation awarded under this Act, to pay the same to the person lawfully entitled thereto.

4. In these appeals the main thrust of the arguments, advanced by the Appellants counsel was to the effect, that the Respondent-Land Acquisition Authority-has not shown that the second proviso to Section 33(2) of the Land Acquisition Act is applicable in the instant cases.

5. The learned Single Judge held that acceptance of a cheque amounts to acceptance of payment, and if no protest is made at the time of its acceptance, no application will lie under Section 20 of the Kerala Land Acquisition Act for referring the matter to Court. The learned Single Judge also held that the question as to whether the amount was received under protest or not, should be decided by the Land Acquisition Officer and it is within his jurisdiction to decide as to whether the second proviso to Section 33(2) is attracted to the instant cases. Counsel for the Appellants argued that the crucial aspect that arises for consideration is whether the bar specified in the second proviso to Section 33(2) applies to the instant cases and whether it has been so shown or demonstrated by the Respondents (Land Acquisition Authority) Appellants counsel stressed the fact that this crucial aspect was omitted to be noticed, as the learned Single Judge assumed that the receipt of the amounts due under the awards without making any protest simultaneously, must in all cases act as a bar as specified in the second proviso to Section 33(2) of the Kerala Land Acquisition Act. Appellants counsel further contended that this assumption is an over-statement of the law, without due regard to the facts and circumstances appearing in the cases and also the irresistible inference flowing from a perusal of the relevant files.

6. It is common ground that the Land Acquisition Authority did not communicate to the Petitioners any order having been passed in the applications filed by the Petitioners. In the files produced before us, it is stated as follows:

"Kindly e-mail us at info@legitquest.com for this matter"


The above endorsement is seen on the reverse side of the reference application. No material was placed before us to show that any detailed order, containing reasons, was passed in both the cases or that the orders or the proceedings, rejecting the applications for referring the matters to court, were, however, communicated to the Petitioners in the O.Ps. It cannot be doubted that the effect of the order rejecting the applications filed by the Petitioners for referring them to court, results in civil consequences. The parties, against whom adverse orders are passed, are entitled to challenge the same in appropriate proceedings to ventilate their grievances. Very valuable rights of the persons, whose lands are acquired, will be adversely affected by the order passed, rejecting their applications as unsustainable. They are entitled to know the reasons for the adverse order passed against them, in order to enable them to seek further remedy in law. It is only proper that in a serious matter, like this, the authority concerned, should record its reasons in detail and communicate the order or proceedings so passed to the affected parties. Whatever may be the label given to the jurisdiction exercised by the Land Acquisition Authority-quasi judicial or administrative- since the effect of the order, passed by such an authority, is to visit persons with civil consequences, such authorities should record their reasons for the order and also communicate the order passed to the affected parties. If it is not so, it will be unfair. We hold so.

7. We are fortified in taking the above view in the light of the recent Supreme Court decision in M/s Star Enterprises and Ors. v. City arid Industrial Development Corporation of Maharashtra Ltd. and Ors. : 1990 (3) S.C.C. 280. In this case, the files show that a note was put up by the office that the application filed for reference to court may be rejected since no protest was recorded at the time of receipt of the amount awarded. The Special Tahsildar has simply stated "Kindly e-mail us at info@legitquest.com for this matter" "(rejected). We are of the view that the applications filed by the Petitioners for referring the matter to court have not been properly and legally considered or disposed of by the Land Acquisition Authority. What is more-the proceedings recorded were not communicated to the concerned affected parties. The entire proceedings were covered with veil of secrecy. In such circumstances, we hold that the applications filed by the Petitioners for referring the matter to court, have not been disposed of, in accordance with law. They should be deemed to be still pending. We hold so. If the applications are so pending, a writ of mandamus will lie against the Respondents to consider the matter in accordance with law. We direct the Respondents to consider the applications filed by the Petitioners for referring the matter to court in accordance with law. With great respect to the learned Single Judge, we find that this crucial aspect discernible from the files was neither brought to his notice, nor highlighted during the hearing of the case, nor dealt with in the judgment under appeals.

8. The learned Single Judge held that the Petitioners are precluded from making the applications under Section 20 of the Act on the ground that they received the amount due under the award otherwise than under protest. The second proviso to Section 33(2) of the Kerala Land Acquisition Act was relied on as a bar to the applications made under Section 20 of the Act. On this aspect, we would refer to two decisions of this Court and a Bench decision of the Himachal Pradesh High Court, which have great impact on the questions raised before us. In Annamma Chacko v. Land Acquisition Officer dealing with the second proviso to Section 33(2) of the Land Acquisition Act, Khalid, J. stated the law thus:

It has to be first borne in mind that the second proviso does not lay down the manner in which the protest has to be indicated. There are many methods by which the protest contemplated under the second proviso could be indicated. Courts and other authorities exercising powers under the Act should be careful to see that the right for reference is not denied to an aggrieved, party unless the facts of the particular case lead to the only conclusion that the receipt of compensation was without any protest. Invariably properties are taken from persons who are not well-versed with their rights, nor with the procedure to claim enhancement of compensation. In my view, it is necessary for the authorities concerned while tendering the payment of compensation awarded to persons interested, to alert them about so that even when amounts are received such persons could make the necessary endorsements that the amounts are received under protest on the back of the receipt itself to avoid future technical plea based on the second proviso to Section 31(2). It is only when the authority is satisfied that the claimant has accepted the amount without any protest or where he is satisfied that the claimant hat waived the right of reference or abandoned the claim for enhanced compensation that a request for enhancement could be rejected. If before acceptance of the amount of compensation, the claimant had in any manner expressed his objection to the award, such objection should be deemed to be a protest under the law. To insist upon written words under protest on the receipt itself when payment is made, when the party had objected to the award earlier is not in consonance with justice or fairplay. When a person files an application under Section 20, that is the clearest indication that he has not accepted the award. An application under Section 20 has to be in writing. If amount of compensation awarded is received, subsequent to the application under Section 20, it goes without saying that the amount is received under protest. It is not necessary for a person to write the words under protest every time he files an application If such an application is made, it is not necessary to make a statement in the cheque application that it is made under protest. Nor is it necessary thereafter to put down the words under protest in the receipt when the Cheque is received. To insist to do so will be to take an extreme view of the matter.

(emphasis supplied)

In Orupuvil Mathew Ouseph v. District Collector, Ernakulam I.L.R. 1976 Ker 28, [LQ/KerHC/1975/116] dealing with the second proviso to Section 33(2) of the Act Subramonian Poti, J. held as follows:

That prohibits any person who has received the amount otherwise than under protest from making an application under Section 20. Therefore when an application under Section 20 is sought to be held incompetent it is for the Collector to satisfy himself that the amount had been received otherwise than under protest. It is very significant that the section does not mention how the protest must be made. There is ho requirement that the protest should be in writing. The protest may be made orally. It need not necessarily be in the nature of a memo of protest. It may take any form. In short if the materials before the District Collector show that the applicant for reference was in a state of mind of reconciliation with the award at the time of receiving the amount there is no case for a reference. That must necessarily depend upon an assessment of all the circumstances of the case. If, simultaneous with the receipt of the amount of compensation, an application of reference is moved, it goes without saying that it would amount to protest, for the very fact that the Petitioner questions the quantum of compensation would indicate that he is not satisfied with the compensation determined in the award. So long as no particular form of protest is specified that would be sufficient to show that there was protest.

(emphasis supplied)

The above two decisions emphasize, that in order to attract the second proviso to Section 33(2) of the Act, it should be evident or shown that the applicant for reference was in a state of mind of reconciliation with the award at the time of receiving the amount, that there is no case for a reference, that this aspect, will depend upon all the circumstances of the case and the facts of the particular case should lead to the only conclusion aforesaid, and since in many cases properties are taken from persons, who are not well-versed with their rights, nor with the procedure to claim enhancement of compensation, it is necessary for the authorities concerned, while tendering the payment of compensation award to persons interested, to alert them about their rights and it is only when such authorities are satisfied that the claimants accepted the amount without any protest or that the claimant has waived the rights of reference or abandoned the claim for enhanced compensation, the application should be rejected. It appears from the above decisions, that there is a duty cast on the Land Acquisition Authorities to prove, "waiver" or "estoppel" and the basic requirement therefor is an intentional act with lull knowledge of such right. Dealing with the above, aspect, a Bench of the Himachal Pradesh High Court in Lachhman Dass v. State of Himachal Pradesh : A.I.R. 1988 H.P. 39 40, paragraphs 6 to 8, stated the law as follows:

6... (before the bar placed by the second proviso to Sub-section (2) of Section 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 Section 18, (ii) that he knew also that such right would be defeated if he accepted the compensation without protest arid (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 place the bar of the second proviso to Sub-section (2) of Section 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 Section 18 and the second proviso to Sub-section (2) of Section 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 Section 18 read with the second proviso to Sub-section (2) of Section 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 Section 18 of the Act.

8. The Petitioner, in the present case, is a justice 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.

(Emphasis supplied)

9. We perused the applications available in the files, as also the other correspondence addressed by the Petitioners to the authorities concerned.

A perusal of the said applications, as also the signatures therein and the signatures in the O.Ps. prima facie show that the Petitioners in these cases are agriculturists/villagers, who could not even sign legibly or clearly. It is for the Land Acquisition Authorities to show that the Petitioners were informed about the relevant legal position, or they knew about the legal implications of accepting the cheque without simultaneous protest. We hold that the burden to establish the said aspect is on the Land Acquisition Authorities Vide Annamma Chackos case 1981 K.L.T. 36 and the Bench decision of the Himachal Pradesh High Court in Lachhman Dass case : A.I.R. 1988 H.P. 39. We concur with the decisions in Annamma Chackos case 1981 K.L.T. 36, Oruppuvil Mathew Ousephs case I.L.R. 1976 Ker 28 [LQ/KerHC/1975/116] and Lachhman Dass case : A.I.R. 1988 H.P. 39. We have extracted earlier, the one word order passed in the applications filed by the Petitioners for referring the matter to court,-as "Rejected". It has been so done machanically and without applying the mind to the crucial aspect that arose for consideration. None of the relevant and material aspects, aforesaid, was ever borne in mind by the Land Acquisition Authorities. It does not appear that the attention of the learned Single Judge was drawn to the above aspects that arose for consideration.

10. On the facts, we hold that the applications filed by the Appellants (Petitioners in the O.Ps.) were not considered and disposed of in accordance with law. Therefore a writ of mandamus will issue in both the cases directing the Land Acquisition Authorities to consider and dispose of the applications filed by the Petitioners under Section 20 of the Kerala Land Acquisition Act in accordance with law and in the light of the observations contained hereinabove.

The common judgment of the learned Single Judge is set aside. The Writ Appeals are allowed.