1. Let the affidavit of service filed in Court today be kept on record. Despite service of notice none appears on behalf of the respondents.
2. In the writ petition, the order dated 3 rd March, 2009 passed by the Special Land Acquisition Officer, South 24-Parganas, the respondent no.5, rejecting the prayer of the petitioners to forward their application under section 18 of the Land Acquisition Act, 1894, to the Special Land Acquisition Judge, is under challenge. The said respondent had rejected the application on the ground that the petitioners had received the payments without any protest. According to the petitioner filing of application under section 18 amounts to non-acceptance of award and recording of protest. The learned advocate for the petitioner has relied on the judgments of the Apex Court in Ajit Singh and others vs. State of Punjab and others, reported in JT 1994 (2) SC 700 and of the Calcutta High Court in Rupa Debi Rathi vs. State of West Bengal and another, reported in 2009(2) CLJ (Cal) 413, in support of his submission.
3. The question is where compensation under the award has been accepted without any protest, whether filing of an application under section 18 of the Act by implication means lodging a protest.
4. It appears from the impugned order that the respondent no.5 had rejected the application on the ground that The payments have been received without any form of protest ..
5. In order to appreciate the issue it is necessary to refer to the relevant provisions in section 18, which is as under :-
18. 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 persons to whom it is payable, or the apportionment of the compensation among the persons interested.
(2) .
6. Thus, as noted, any person interested, who has not accepted the award, being aggrieved, may file a written application before the Collector under section 18 for referring the matter for the determination of the Court. Therefore, it appears from the language of section 18, filing an application means lodging an objection to the award, subject to the point of limitation under section 18(2). Such objection, as seen from section 18(1), may be to the measurement of the land or regarding the amount of compensation or regarding the persons to whom it is payable or apportionment of compensation among the persons interested. In Ajit Singh (supra) the Supreme Court held as follows:-
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.
7. The said judgment has been followed in Rupa Debi Rathi (supra). Hence, as seen, acceptance of compensation without any protest does not forfeit the awardees right to file an application under section 18(1). Therefore, the order impugned cannot be sustained and is, thus, set aside and quashed. The writ petition is allowed. The respondent no.5 is directed to consider the application under section 18 afresh and shall pass a reasoned order in accordance with law to be communicated to the parties within eight weeks from the date of communication of this order after giving an opportunity of hearing to the petitioners and the proforma respondents. I, however, make it clear that I have not gone into the merits of the application under section 18 of the Act.
8. There will be no order as to costs.
9. Let urgent photostat certified copy of this order, if applied for, be furnished to the appearing parties on priority basis.