Suroma Naskar and anr. Vs. State of West Bengal and ors.

Suroma Naskar and anr. vs State of West Bengal and ors.

Type Court Judgment Court Kolkata Appellate Decided Jan 11, 2011

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Citation: sooperkanoon.com/913447
Court: Kolkata Appellate High Court
Judge: Soumitra Pal, J.
Decided On: Jan 11, 2011
Case Number: W.P. 17276 (W) of 2009
Subject: Land Acquisition

Case Summary

AI-generated summary - not the official court judgment text.

[Aftab Alam ; R.M. Lodha, JJ.] - Narcotics Drugs & Psychotropic Substance Act, 1985 - Sections 8 - Prohibition of certain operations -- The suspected narcotic recovered from the appellant was seized under seizure memo, Exhibit P.22. The trial court by judgment and order dated 9.11.2005 passed in Special Case No.4/20...

Key legal issue: Land Acquisition

Parties & Advocates

Appellant / Petitioner

Suroma Naskar and anr.

Advocate Mr. Tapas Sil; Mr. P. Sinha; Mr. Amitava Mitra, Advs

Respondent

State of West Bengal and ors.

Legal References

Cases Referred: Rupa Debi Rathi vs. State of West Bengal and

Excerpt

[aftab alam ; r.m. lodha, jj.] - narcotics drugs & psychotropic substance act, 1985 - sections 8 - prohibition of certain operations -- the suspected narcotic recovered from the appellant was seized under seizure memo, exhibit p.22. the trial court by judgment and order dated 9.11.2005 passed in special case no.4/2005 held all the three accused, including the appellant guilty of offences punishable under sections 8/21(b) of the ndps act and sentenced them as noted above. against the judgment of the trial court, the appellant preferred criminal appeal no.2511/2005 before the high court. the high court dismissed both the appeals by judgment and order dated april 17, 2008. the appellant alone has come in appeal against the judgment of the high court. the present appeal arises out of the judgment dated 10.12.2007 passed by the learned single judge of the high court of allahabad (lucknow bench) whereby the learned single judge has dismissed the tax revision filed by the appellant under section 11 of the u. p. trade tax act (hereinafter referred to as "the act") impugning the judgment dated 14.8.2007 passed by the trade tax tribunal, lucknow rejecting the second appeal of the appellant/assessee. the interest charge on the tax could not have been charged under section 8(1) as the case falls under section 8(1b). as in the present case the tax becomes admittedly payable once it has been held that the tax is payable under the act, the interest would be payable in terms of subsection (1) of section 8 of the act and not in terms of subsection (1b) of section 8 of the act. this court in the case of commissioner of sales tax v. qureshi crucible centre, 1993 supp (3) scc 495 has held that where a dealer fails to pay tax at the correct rate because he claimed not to know the revision in the rate, the dealer remains liable to pay interest at a higher rate, penal rate under section 8 (1) from the date when the tax became due and payable. .....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.....

Full Judgment

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.

Same Court & Year Kolkata Appellate · 2011 Same Parties Suroma Naskar and anr. vs State of West Bengal and ors. Same Subject Land Acquisition Same Judge Soumitra Pal, J.

Land Acquisition