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2009 DIGILAW 173 (CAL)

Rupa Debi Rathi v. STATE OF WEST BENGAL

2009-03-04

JAYANTA KUMAR BISWAS

body2009
Judgment :- (1) The petitioner in this writ petition dated October 5, 2007 is seeking a mandamus commanding the second respondent, the collector, to refer the matter connected with the award to Court on the basis of her application under Section 18 of the Land Acquisition Act, 1894 for the determination of the Court her objection to the amount of the compensation. (2) The acquisition proceedings were initiated under provisions of the Land Acquisition Act, 1894. After making the award the collector issued notice under Section 12(2). The petitioner received payment on June 8, 1998. She submitted a letter dated June 8, 1998 stating that she received the payment under protest as to the sufficiency of the amount. Then she submitted the Section 18 application on June 15, 1998. By a letter dated June 28, 2007 the Special Land Acquisition Officer, Uttar Dinajpur, Raiganj informed her Advocate that the collector had rejected her Section 18 application on October 20, 2000 on the ground that she had not registered her objection on the consolidated voucher. Feeling aggrieved, she took out the present writ petition. (3) The collector has filed an opposition dated February 25, 2009. With the opposition a copy of the consolidated voucher concerned has been produced to show that the petitioner received payment according to the award otherwise than under protest. (4) Mr. Bidyut Kumar Banerjee, Counsel for the petitioner, submits that simply because the protest was not recorded on the consolidated voucher itself, it cannot be said that the petitioner received the payment otherwise than under protest, especially when she submitted at once the protest letter dated June 8, 1998. According to him, the protest letter was sufficient to satisfy the requirements of law for maintaining the Section 18 application. He relies on Ajit Singh and Ors. v. State of Punjab and Ors., 1994 (4) SCC 67 , and submits that in view of what was said in the decision by the. Supreme Court, the filing of the Section 18 application itself showed that the petitioner received the payment under protest as to the sufficiency of the amount, and hence the collector could not reject the Section 18 application. (5) Mr. Angshu Nath Banerjee, Counsel for the State, submits that the petitioner was required to record her protest, if any, only on the consolidated voucher. (5) Mr. Angshu Nath Banerjee, Counsel for the State, submits that the petitioner was required to record her protest, if any, only on the consolidated voucher. According to him, since the petitioner did not record her protest on the consolidated voucher, her protest recorded by submitting the letter dated June 8, 1998 cannot be considered a valid protest sufficient to satisfy the requirements of law on fulfilment whereof only she could maintain a Section 18 application. His further submission is that as was held in Land Acquisition Officer v. Shivabai and Ors., AIR 1997 SC 2642 , a person receiving payment according to an award otherwise than under protest is not entitled to make any Section 18 application seeking reference of the matter to Court for the determination of his objection to the amount of the compensation. (6) There is no dispute that the Section 18 application submitted by the petitioner was within the time prescribed by Section 18(2). This fact was admitted by the Special Land Acquisition Officer. Uttar Dinajpur, Raiganj in his letter dated June 28, 2007, and it has again been confirmed by the collector in para. 8 of his opposition. Hence the two questions which require decision in the case are: (i) whether the petitioner received the payment according to the award under protest as to the sufficiency of the amount; and (ii) whether the filing of the Section 18 application itself will show that she received the payment under protest as to the sufficiency of the amount, if it is found that she actually received the payment otherwise than under protest. (7) As to the question whether the petitioner received the payment under protest as to the sufficiency of the amount, I am unable to agree with Mr. Angshu Nath Banerjee that the protest recorded by the petitioner as to the sufficiency of the amount otherwise than by recording it on the consolidated voucher concerned was not a valid and sufficient protest. In my opinion, he could say so, only if any provision of law said so. (8) No provision of law provided that the protest, if the petitioner wanted to record one, she was required to record only on the consolidated voucher concerned, and not otherwise. In my opinion, he could say so, only if any provision of law said so. (8) No provision of law provided that the protest, if the petitioner wanted to record one, she was required to record only on the consolidated voucher concerned, and not otherwise. In the present case, she received the payment according to the award on June 8, 1998 and at once submitted her letter dated June 8, 1998 stating that she received the payment under protest as to the sufficiency of the amount. In my opinion, in the absence of any law requiring her to record her protest in any particular form and manner, it cannot be said that the protest recorded by her by submitting the letter was not a valid and sufficient protest within the meaning of the provisions of Section 31 of the Act. Hence I hold that the collector was wrong in holding that the petitioner received the payment otherwise than under protest. (9) As to the second question, I find that the Supreme Court decision in Ajit Singh fully supports Mr. Bidyut Kumar Banerjees contention. There Ajit Singh and Ors. received payment according to the award without recording any protest, and on this ground their Section 18 application was turned down by the Reference Court, the High Court upheld the decision of the Reference Court. Their Lordships of the Supreme Court held (in para.5 of the report):- "5............. 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." (10) I do not think the decision in Shivabai can be of any assistance in the present case. There the award in the land acquisition proceedings was made by the collector on November 22, 1965 in presence of the claimants who received the payment without protest on November 25, 1965. Two of the claimants who were not present on November 25, 1965 received the payment on November 27,1965. In 1986 Shivabai and Anr. filed a writ petition claiming that they filed an application under protest, but reference under Section 18 was not made. Two of the claimants who were not present on November 25, 1965 received the payment on November 27,1965. In 1986 Shivabai and Anr. filed a writ petition claiming that they filed an application under protest, but reference under Section 18 was not made. The Single Judge ordered that if Section 12 (2) notice was not served, step should be taken for making reference. The order was confirmed in writ appeal. Thus the reference was made in 1990. In 1991 an application was filed seeking rejection of the reference alleging that the time-barred reference was obtained fraudulently with the connivance with the land acquisition officer. The Court dismissed the application, and its award increasing the compensation was confirmed by the High Court. While turning down the contention that the Section 18 application was not time-barred, their Lordships of the Supreme Court referred to the provisions of Sections 18 and 31, and in such context, it was said (in para.7 of the report):- "7..........If the amount is received without protest, by operation of second proviso to sub-section (2) of Section 31, such person who has received the amount without protest is not entitled to seek a reference under Section 18." (11) It is therefore apparent from the decision in Shivabai that the question whether the filing of a Section 18 application itself by a person aggrieved by the award implies that he received the payment according to the award under protest as to the sufficiency df the amount, though he actually received the payment otherwise than under protest, did not arise for consideration. In Shivabai, Their Lordships just referred to the provisions of the second proviso to Section 31(2) providing that no person who has received the amount otherwise than under protest shall be entitled to make any application under Section 18. It is also to be noted that the decision in Ajit Singh was not considered in Shivabai. Under the circumstances, it cannot be said that the principle stated in Ajit Singh was considered for any purpose by their Lordships of the Supreme Court in Shivabai. It is also to be noted that the decision in Ajit Singh was not considered in Shivabai. Under the circumstances, it cannot be said that the principle stated in Ajit Singh was considered for any purpose by their Lordships of the Supreme Court in Shivabai. (12) Hence there can be no doubt that in view of the principle stated in Ajit Singh, the petitioner in this case is justified in saying that even if it is held that her protest letter dated June 8, 1998 did not satisfy the requirements of the provisions of the second proviso to Section 31 (2), the mere fact of her filing the Section 18 application within the time mentioned in Section 18(2) implied that she had received the payment under protest as to the sufficiency of the amount determined by the collector. Mr. Angshu Nath Banerjees argument that if the principle stated in Ajit Singh is applied then the second and third provisos to Section 31 (2) will become redundant cannot be accepted for the simple reason that everybody is just bound by the principle stated by the Supreme Court. (13) I am therefore of the view that the collector was wrong in rejecting the petitioners Section 18 application. The collector was under a statutory obligation to refer the matter to Court for the determination of the Court the petitioners objection to the amount of the compensation. (14) For these reasons, I allow the writ petition and order as follows. The decision of the collector dated October 20, 2000 is hereby set aside. The collector is directed to refer the matter to Court within a week from the date of communication of this order to him. There shall be no order for costs.