JUDGMENT
Prabha Shanker Mishra, C.J.
1. The Land Acquisition Officer, Kamareddy and the District Collector, Nizamabad, have preferred this appeal under Clause 15 of the Letters Patent of the Court against a judgment by a learned Single Judge of this court in the original proceeding under Article 226 of the Constitution of India. The lands belonging to the writ petitioner-respondents, it is not in dispute, were acquired and the proceedings, according to the appellants, finally ended in the award No. A2/929/86 dated 23-9-1986. Writ petitioner-respondents received the compensation amount but objected to the amount of compensation and sought reference for the determination of the court. The Collector under the Land Acquisition Act (hereinafter referred to as “the Act”), however, refused to refer the matter to the court. Seeking accordingly appropriate directions to the Collector under the Act, petitioner-respondents have come to this court. The court has allowed the petition. Hence the appeal.
2. None of the facts alleged by the writ petitioner-respondents are disputed by the appellants except that in their return in the writ petition, they have alleged that no application was filed under Section 18 of the Act to refer the matter to the civil court. The court, however, has found on it as follows:
“The learned counsel for the petitioners has placed before me the original application filed by the petitioners on October, 14 1986 praying the Land Acquisition Officer to refer the matter to the Civil Court under Section 18 of the Act for determination of proper compensation as the claimants are not satisfied with the amount of compensation as awarded -vide Award dated September 23, 1986 and the said application contains the stamp and seal of the Land Acquisition Officer. That apart, in the earlier writ petition No. 4762 of 1992 filed by the petitioners seeking for a direction to the Land Acquisition Officer to refer the matter to the Civil Court, a counter-affidavit was filed by the Revenue Divisional Officer, Kamareddy, wherein it is stated that “it is true that the application under Section 18 of the Act filed by the petitioners could not be accepted upon as the entire record was submitted to the High Court in connection with Writ Petition No. 18833 of 1987 and the same was returned on October, 22, 1991″. Therefore, from this counter-affidavit, it is clear that there was no specific denial about the receipt of the application filed under Section 18 of the Act. What all the Revenue Divisional Officer stated in the said counter-affidavit is that action could not be taken as the entire file was sent to the High Court. Although the file was returned according to him on January, 22, 1991 and the entire file was very much available with him, he never denied that no such application was filed by the petitioners. The counter-affidavit filed by him was sworn to by him in September, 1992. Added to this, the proceedings of the Collector in letter No. D1/10949/91 dated December 27, 199 also supports the case of the petitioners, wherein it is stated that the Revenue Divisional Officer is permitted to refer the case under Section 18 of the Act to the District Court, Nizamabad observing the necessary formalities. In view of all these circumstances, I have no hesitation to come to the conclusion that the Petitioners have filed an application under Section 18 of the Act before the Land Acquisition Officer on October 15, 1986 seeking reference to the Civil Court under Section 18 of the Land Acquisition Act and it is the respondents that could not take action in that regard.”
Learned counsel for the appellants, however, has placed reliance upon Section 31(2) of the Act and contended that since the awardees received the compensation and they did so without any protest as to the sufficiency of the amount, the Collector under the Act had/has no obligation to refer the matter to the civil court under Section 18 of the Act.
3. Section 31 of the Act which provides for payment of compensation or deposit of the same in court prescribes, inter alia, that on making the award under Section 11, the Collector shall tender payment of the compensation awarded by him to the persons interested entitled thereto according to the award and to pay to such person interested unless prevented by some one or more of the contingencies i.e., if the awardees shall not consent to receive the compensation awarded by the Collector, or if there be no person competent to alienate the land, or if there be any dispute as to the title to receive compensation, or as to the apportionment of it. The Collector, when prevented by any of the above contingencies, shall deposit the amount of the compensation in the court to which a reference under Section 18 would be submitted. To this, besides a proviso as to the liability of any person who may receive the whole or any part of any compensation awarded under the Act to pay the same to the person lawfully entitled thereto, there are two provisos: (i) that any person admitted to be interested may receive such payment under protest as to the sufficiency of the amount; and (ii) that no person who has received the amount otherwise than under protest shall be entitled to make any application under Section 18.
4. A learned Judge of this court in Shanta Bai v. Special Deputy Collector, Land Acquisition, Hyderabad, has referred to the material provisions of Section 31 of the Act and has observed as follows:
“What the second proviso to Section 31 prevents is the making of any application under Section 18. This application had already been made and when such an application was made the Land Acquisition Officer is bound to refer it to the Civil Court. Further, the circumstances of the filing of the petition seeking reference of a claim to a Civil Court is a positive indication that the petitioner is objecting to the amount of compensation fixed under the award and that the amount subsequently withdrawn was withdrawn only under protest. There is no particular form of indicating the protest specified under the Act or under the Rules. Such protest can either be explicit or can be inferred by necessary implication from the circumstances. The very fact that she had earlier filed a petition for reference of her claim to the court is an indication positive of her protest. It is not further necessary to state that she was withdrawing the money under protest. In my view, the requirements of the first proviso to Sub-section (2) of Section 31 are substantially complied with. There could, therefore, be no bar for the petitioner’s claim being referred to the Civil Court.”
Division Bench of the Calcutta High Court in Md. Golam Ali v. L.A. Collector, and again a Division Bench of the said court in Kusumlata v. Land Acquisition Collector, held that the legal right of a claimant to insist on a reference under Section 18 of the Act to be made by the Collector to the civil Court can be said to have been thrown away only when the claimant is shown to have received the amount otherwise than under protest. The court has observed:
“So long as there is a protest in fact appearing neither the form of the protest nor the particularity of any document in which that protest may be contained is any disability. In the present case, there is no denial of the fact that there was a protest by an application to the Land Acquisition Collector. Not only in the application praying for a reference under Section 18, but also there was another independent application on the same day i.e., 11th of November, 1963, by signifying that protest and conveyed that the claimant was agreeable to withdraw the money under protest without prejudice to his right regarding the reference under Section 18. Therefore, the amount that was withdrawn was in fact under protest and we comprehend that the Land Acquisition Collector had authorised payment of that amount only in pursuance of the petition in which the claimant had clearly stated that he is agreeable to withdraw the amount under protest. In these circumstances, second proviso under Sub-section (2) of Section 31 of the Land Acquisition Act, 1894 has no application and it was the duty of the Land Acquisition Collector to make a reference under Section 18 of the Act to the Civil Court by omitting to do so that public officer has failed to discharge his legal duty.”
The Calcutta court in Kusumlata (3 supra) referred to an earlier judgment in Suresh Chandra Roy v. L.A. Collector, to declare obiter the observations in the said judgment that unless the protest actually appears in the body of the receipt, the receipt must be taken to be a receipt without protest Learned counsel for the appellants, however, has shown to us observations in a Division Bench judgment of the Allahabad High Court in Surendra Mohan Hans v. State, a judgment of the Himachal Pradesh High Court in Nathu v. State, some unreported judgments (which are only orders without dealing with the relevant aspects of the matter) and a Bench decision of this Court in C.S. Ramachandra Rao v. L.A. Officer Visakhapatnam, the latter being the sheetanchor of his contention that the condition precedent for the applicability of Sub-section (1) of Section 18 of the Act is that such a person interested must not have accepted the award. The Bench has, on this, observed as follows:
“What is therefore manifest from a reading of the foregoing provisions is that any person interested is entitled to make an application under Section 18 of the Act to have the matter referred by the Collector for the determination of the Court. But the condition precedent for the applicability of Subsection (1) of Section 18 of the Act is that such a person interested must not have accepted the award. In the present case it is admitted that the application under Section 18 of the Act was filed well within time. But the question is whether it was filed by a person who has not accepted the award. He who has accepted the award is disentitled from asking for a reference under Section 18 of the Act. The question is whether the petitioner has or has not accepted the award within the meaning of the expression occurring in Sub-section (1) of Section 18 of the Act.
Statutorily an occasion for the person interested to signify the factum of his not accepting the award was provided under Section 31 of the Act by requiring such a person at the time of receiving the payment tendered to receive the same under protest. The first instalment of the compensation was tendered to the petitioner and the petitioner in terms of the second proviso appended to Sub-section (2) of Section 31, received the amount without any protest, and as per that proviso, he is not entitled to make any application under Section 18 of the Act. In view of the fact therefore that the petitioner received the first instalment of the compensation awarded without protest, he is not entitled to make any application under Section 18 of the Act.
But Sri G. Ramachandra Rao, the learned counsel appearing for the petitioner, contended that the point of time at which the protest shall have to be registered by the interested person is not when such a person receives the first instalment but at the time when he is to receive the entire amount of compensation awarded. Section 31(1) provides that on making an award under Section 11 of the Act, the Collector shall have to tender payment of the compensation awarded to him to the persons entitled thereto according to the award. If the persons entitled do not consent to receive it, the Collector is obliged under Sub-section (2) of the aforesaid Section 31 to deposit the amount of compensation in the Court to which a reference under Section 18 of the Act would be submitted. Under the second proviso appended to the aforesaid Sub-section (2), no person who has received the amount otherwise than under protest shall be entitled to make any application under Section 18 of the Act. The occasion to receive the amount arises only when it was tendered.
The protest as required to be registered or made under the aforesaid proviso should necessarily be with respect to the receipt of the amount and the receipt of the amount is referable only to the amount that is tendered. The amount that was tendered here is the first instalment of the compensation awarded. There is, therefore, nothing in the language employed in Section 31 of the Act warranting the conclusion that the learned counsel requests this court to draw, from a reading of Section 31 to the effect that the person interested is entitled to protest or at any rate he can exercise that right of protect till the last pie is paid. We, have therefore no hesitation in rejecting the contention of the learned counsel for the petitioner that the person entitled can protest at any time even after receiving the first instalment of payment without protest so as to entitle him to file an application under Section 18 of the Act. The first respondent stated in his order thus:
“With reference to your letter cited requesting for reference under Section 18 of the Land Acquisition Act in the matter of acquisition of T.S.No. 640 of Vizianagaram Municipality, I would like to inform you that you received the compensation on 12-6-1978 in my office without protest. While receiving payment of compensation in Code From CC, you have not recorded that you have accepted the compensation under protest. The fact of your accepting the compensation without protest has already been communicated to the Accountant General, Andhra Pradesh, Hyderabad in Code Form A.A. on 17-6-1978. Having received the compensation without protest you are barred from seeking reference under Section 18 of the Land Acquisition Act for enhancement.”
We are of the opinion that the District Social Welfare Officer is quite correct in rejecting the application filed by the petitioner under Section 18 of the Act and agree with the reasons assigned by the respondent while so rejecting the application of the petitioner.”
5. Before, however, we express on the view in C.S. Ramachandra Rao (7 supra), we may refer to the pronouncements of the Supreme Court on the subject, the first being in Md. Hasnuddin v. State of Maharashtra, . The material facts giving rise to the appeal before the Supreme Court and the details of the judgment are not relevant except that while referring to Section 18 of the Act, the Supreme Court has approved the observations of the Calcutta High Court in Administrator General of Bengal v. Land Acquisition Collector 24 Parganas, (1908) 12 CWN 241 which are as follows:
“……………When an application is made to the Collector requiring him to refer the matter to the Civil Court, the Collector may have to determine and, it seems to us, determine judicially whether the person making the application was represented or not when the award was made, or whether a notice had been served upon the applicant under Section 12(2) and what period of limitation applies and whether the application is under the circumstances made within time. The Collector’s functions under Part III of the Act are clearly distinguishable from those under Part II. Part III of the Act relates to proceedings in Court. In our opinion, the Collector in rejecting the application was a Court and acting judicially and his order is subject to revision by this Court. To hold otherwise would be to give finality to an award under Section 11 even in cases in which the Collector acts irregularly and contrary to law and then refuses on insufficient grounds to make a reference under Part III of the Act. The party aggrieved may be left without remedy which is implied by a judicial trial before the Judge.”
In A. Viswanatha Pillai v. Special Tahsildar, for Land Acquisition No. IV, the Supreme Court has observed:
“When on of the co-owners or coparceners made a statement in his reference application that himself and his brothers are dissatisfied with the award made by the Collector and that they are entitled to higher compensation, it would be clear that he was making a request, though not expressly stated so but by necessary implication that he was acting on his behalf and on behalf of his other co-owners or coparceners and was seeking a reference on behalf of other co-owners as well. What was acquired was their totality of right, title and interest in the acquired property and when the reference was made in respect thereof under Section 18, they are equally entitled to receive compensation pro rata as per their shares.”
Distinguishing the said judgment in Ashwani Kumar Dhingra v. State of Punjab, the Supreme Court has said:
“The acceptance of compensation under protest was not done by the appellant with a view to safeguard his right to challenge the acquisition itself but to safeguard his right to require the matter being referred by the Collector for determination of the Court in relation to the matters mentioned in Section 18 of the Land Acquisition Act that the person interested, in order to enable him to seek the remedy of reference can do so only if he does not accept the award. In order to show that the person concerned had not accepted the award, the claimants accept the compensation only under protest because once the compensation awarded in pursuance of the award is accepted without protest, the person concerned may lose his right to a reference for various matters mentioned in Section 18 of the Land Acquisition Act.”
The Supreme Court in a recent judgment in Ajit Singh v. Punjab, 1994 (2) SCALE 316 has dealt with a case in which objection was taken to the claim for enhancement of the amount of compensation on the ground that the award money was received by the person interested without protest. The Supreme Court has, upon that, said as follows:
“Having regard to the contiguity of these lands, the High Court is correct in its valuation. Besides, the date of notification, issued under Section 4 of the Act, is 4-10-1978 while Exhibit R-6 is nearer to it namely, 16-8-1978, in comparison to Exhibit A-6 dated 14-1-1977. 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.”
We are not pursuaded, however, to see any conflict in the various judgments and the views expressed by different courts. The Calcutta court’s view in Administrator General of Bengal (9 supra), which has been approved by the Supreme Court, has left no manner of doubt to the functions of the Collector under Section 18 of the Act. He acts as a court and is required to make a judicial order. He cannot ignore the objections and the demand of the person interested for reference of the matter to the Civil Court. He has a duty to decide and say by an order in writing that there was some reason for not referring the matter to the Civil Court, against which order, the aggrieved claimant (person interested) will have a right to move a higher or superior court in revision, if not under Section 115 of the Code of Civil Procedure, under Article 226 of the Constitution of India. No mode or method of protest and receiving compensation awarded by the Collector under protest is prescribed. A person who is alleged to have received compensation without protest will be one who knew the implications of the award by the Collector under Section 11 of the Act and that he had a right to claim higher compensation and seek reference of the matter to a Civil Court. In other words, it should be a conscious and deliberate decision of receiving compensation and not protesting against it in any manner. The Supreme Court has made it clear that when no mode or manner of protesting to the award and amount of compensation is prescribed, the intention that the amount of compensation is not acceptable can be inferred from the objections and demand of reference to the Civil Court by the person interested. The view that we have taken is not in conflict with the view taken by this Court in C.S. Ramachandra Rao (7 supra) and in all respects in consonance with the scheme of the law as to the award of compensation and adjudication by the Civil Court of the claim for any enhancement of compensation.
6. Learned counsel for the appellants has urged that except the claim petition, there is no material for the inference that the writ petitioner-respondents had accepted the compensation awarded by the Collector under Section 11 of the Act without protest and later, as an after thought, decided to file objections demanding reference to the Civil Court. He has submitted that the court should give opportunity to the appellants to bring to the notice of the Civil Court such facts, if available, which would show that the awardees (petitioners-respondents) in fact had accepted the award without protest.
7. We have taken notice of the findings of the learned single Judge on the question of the consent of the writ petitioner-respondents and their allegedly accepting the compensation money without protest. Prima facie, and in a proceeding under Article 226 of the Constitution of India, it is ordinarily only on the basis of the prima facie material, the learned Single Judge has found that there is no specific denial on behalf of the appellants about the receipt of the application filed by the writ petitioner-respondents under Section 18 of the Act and that the proceedings of the Collector in Letter No. D1-10949/91 dated December 27 1991 supports the case of the writ petitioner-respondents. We have, however, good reasons to think that in the proceedings before the Civil Court, appellants should be given opportunity to bring in material which would show that writ petitioner-respondents had accepted the compensation money without any protest. Attendant facts or condition precedents for a reference under Section 18 of the Act legitimately fall for enquiry in the proceedings before the Civil Court. The Civil Court proceeds only on the basis of the statement of the Collector and the court gives notice to the applicant and all persons interested in the objection except such (if any) of them as have consented without protest to receive payment of the compensation awarded (see Section 20 of the Act). The scope of enquiry by the court is restricted to the consideration of the interests of the persons affected by the objection (see Section 21). Considering the case of the reference of the matter to the Civil Court under Section 18 in Md. Hasnuddin (8 supra), the Supreme Court has pointed out that the making of an application for reference within the time prescribed by the proviso to Section 18 (2) is a sine qua non for a valid reference by the Collector and that it is the duty of the court to see that the reference made to it by the Collector under Section 18 complies with the conditions laid down therein so as to give the court jurisdiction to hear the reference.
In deciding the question of jurisdiction, the Supreme Court has pointed out, “in a case of reference under Section 18 by the Collector to the court, the court is certainly not acting as a court of appeal; it is only discharging the elementary duty of satisfying itself that a reference which it is called upon to decide is a valid and proper reference according to the provisions of the Act under which it is made”. The Supreme Court has observed, “that is a basic and preliminary duty which no tribunal can possibly avoid”. The Supreme Court has quoted with approval, a passage from the celebrated judgment in R. v. Commrs. for Special Purposes of the Income Tax, (1888) 21 QBD 313 in which it is pointed out that statutory tribunals can be divided into two categories viz., (i) when an inferior court or tribunal or body which has to exercise the power of deciding facts, is first established by Act of Parliament, the legislature has to consider what powers it will give that tribunal or body. It may in effect say that, if a certain state of facts exists and is shown to such tribunal or body before it proceeds to do certain things, it shall have jurisdiction to do such things, but not otherwise. There it is not for them conclusively to decide whether that state of facts exists, and if they exercise the jurisdiction without its existence, what they do may be questioned, and it will be held that they have acted without jurisdiction; and (ii) The legislature may entrust the tribunal or body with a jurisdiction, which includes the jurisdiction to determine whether the preliminary state of facts exists as well as the jurisdiction, on finding that it does exist, to proceed further or do something more. When the legislature are establishing such a tribunal or body with limited jurisdiction they also have to consider, whatever jurisdiction they give them, whether there shall be any appeal from their decision, for otherwise there will be none. The Supreme Court has, in the said judgment, pointed out that the above enunciation by Lord Esher has been accepted by the Supreme Court as laying down the true principle in Chaube jagdish Prasad v. Ganga Prasad, . In Patna Municipality v. Ram Bachan Lal, (F.B.) the above observations of Lord Esher are quoted by a Full Bench of the Patna High Court and it is further pointed out that the first principle which must be kept in view is that the Civil Court is a court of plenary jurisdiction and is competent under Section 9 of the Civil Procedure Code to try all suits of civil nature excepting suits of which their cognizance is either expressly or impliedly barred and that it is settled law that the exclusion of the jurisdiction of the Civil Courts is not to be readily inferred but that such exclusion must either be explicity expressed or clearly implied. It is also well settled that even if jurisdiction is so excluded, the Civil Courts have jurisdiction to examine into cases where the provisions of the Act have not been complied with or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure. The Full Bench has also pointed out that the first type of cases referred to by Lord Esher in the observations quoted above is the ordinary type in which the jurisdiction of a local authority or a tribunal of limited jurisdiction depends upon the existence of some preliminary or jurisdictional facts. While the tribunal must arrive at its own conclusions on those facts for the purpose of deciding whether it is necessary for it to exercise the jurisdiction vested in it, its decision on those facts is not final. The Civil Court or the High Court can undoubtedly enquire into the correctness of its decision in order to determine whether the tribunal has acted in excess of its powers or has refused to exercise its jurisdiction where it was necessary for it to exercise it.
When once it is held that the tribunal’s decision on the jurisdictional facts is correct, the Civil Court cannot enquire into the correctness of its decision on the merits of the matter within its jurisdiction, even the High Court can only interfere by issue of a writ with a decision on a matter exclusively within the jurisdiction of the tribunal only in some special circumstances like the existence of a manifest error apparent on the face of the record. The second type of cases envisaged by Lord Esher is that in which the tribunal of limited jurisdiction has not been given jurisdiction has not been given jurisdiction to do a certain thing or to pass a certain order but has also been given the power exclusively to decide the facts on which its jurisdiction depends. It is manifest, the Patna court has held, that in such cases, the decision of the tribunal on the existence of the facts which attract its jurisdiction is also final and is not open to enquiry by the Civil Court. The patna court has added, “that such a tribunal is happily rare because it would, in the words of Lord Farwell, be an autocratic tribunal and not a tribunal of limited jurisdiction”. We are bound by the pronouncement of the Supreme Court in Md. Hasnuddin (8 supra) and we are in respectful agreement with the views of the Patna court and hold accordingly that the judicial role of the Collector under Section 18 of the Act is always subject to the jurisdiction of the Civil Court and the High Court and although the Civil Court’s jurisdiction is circumscribed by the provisions in Section 21 of the Act, it still can go into the question whether the Collector has properly exercised his jurisdiction and/ or the Collector ought to have exercised his jurisdiction to refuse to make the reference to the Civil Court on the ground that the compensation was received by the person interested without any protest. We have held on the basis of what has been prima facie found by us in favour of the writ petitioner-respondents and affirm accordingly the judgment of the learned Single Judge. We do not propose, however, to say no altogether to any evidence which the appellants may find to satisfy the Civil Court that the writ petitioner-respondents had consented and accepted the compensation money without any protest.
8. The judgment of the Supreme Court in Balaram Chandra v. State of U.P., has, however, been brought to our notice in which it is observed:
“The Collector after making enquiry and passing the award, is required under Section 11 to consider the questions of: (i) the true area of the land required for determination of the compensation; (ii) the compensation which in his opinion should be allowed for the land; and (iii) the apportionment of the compensation among all the persons known or believed to be interested in the land, of whom, or of whose claims, he has information, whether or not they have respectively interested in receiving the compensation. On determination of such of these questions and making the award under Section 11, the claimants, on receipt of notice, are entitled to receive it on protest and to make an application under Section 18 of the Act with objections to the extent of the nature of the land, or the amount awarded or the persons entitled to receive compensation. When such an application within the limit prescribed under the proviso to Section 18 is made, the Collector is required, under Section 19 of the Act, to refer the objections with a statement with regard to the objections raised, to the Civil Court. Thereon, under Section 20 of the Act, the reference court is enjoined to give notice not only to the claimants but also to the Collector and persons interested in the land and the Court is required to go into the objections raised.
Thus it could be seen that the District Judge is enjoined to go into the objections raised by the claimants in making enquiry under Section 20 and to pass award under Section 26 of the Act with reference to the objections raised by the claimants in respect of the area of the land or the amount of compensation. It is, therefore, be clear that the reference Court cannot go behind the reference and give a declaration that the notification under Section 4 (1) and declaration under Section 6 are null and void or illegal. His duty and power are confined vis-a-vis the provisions contained under Section 11, 18 and 20 to 23 and he would not traverse beyond his power.”
We, however, see no conflict with the view expressed by the Supreme Court in Md. Hasnuddin (8 supra) and the Patna court in Patna Municipality (15 supra) in the above observations that the reference court cannot go behind the reference and give a declaration that the notification under Section 4(1) and the declaration under Section 6 are null and void or illegal. In Md. Hasnuddin (8 supra), the Supreme Court has pointed out that the Collector acts as an agent of the Government in making the award under Section 11 of the Act but in making a reference to the Court under Section 18, he (the Collector) acts as a statutory authority. In the words of the Supreme Court, “Section 18(1) of the Act entrusts to the Collector, the statutory duty of making a reference on the fulfillment of the conditions laid down therein. The Collector, therefore, acting under Section 18, is nothing but a statutory authority exercising his own powers under the Section”. It will be impertinent for any reference Court to extend its jurisdiction beyond the limitations under Section 20 of the Act. The Civil Court’s duty and power are confined vis-a-vis the provisions contained under Sections 11, 18 and 20 to 23 of the Act and it would not traverse beyond its power. Condition precedent for a reference, we have noticed earlier, is, however, within the jurisdiction of the Civil Court.
9. In the result, we find no merit in the appeal. The appeal is accordingly dismissed with costs. Hearing fee Rs. 500/-.