D.B.BASNETT (D) THR. LRS. v. THE COLLECTOR
D.B.BASNETT (D) THR. LRS. v. THE COLLECTOR  INSC 225 (2 March 2020)
Facts :- The Agriculture Department of the Government of Sikkim (respondent No.2) sought to acquire, in the year 1980, land measuring 8.36 acres, located in Dundung Block, Sang in East Sikkim for the purpose of building the Progeny Orchard Regional Centre. The land was recorded in two names - 1.29 acres in the name of the Maharaja of Sikkim and 7.07 acres in the name of Man Bahadur Basnett, father of the original appellant. The latter land is subject matter of dispute in the present proceedings. The land in question is partially fenced, with a farm, some barracks and office. Late Man Bahadur Basnett passed away in the year 1991 whereupon the property fell to the share of the appellant in the present proceedings (now represented by his two sons). It may be noticed that Man Bahadur Basnett was survived by seven (7) children, but there is no dispute inter se the siblings in respect of the claim of D.B. Basnett over suit property. It is the case of the late appellant that when he visited the suit property in March, 2002, he found that the respondents had wrongly encroached and trespassed on the same, using it as an agricultural farm. He claims to have lived away from Gangtok earlier and thus, served a notice on 5.4.2002 under Section 80 of the Code of Civil Procedure, 1908 notifying them against the alleged trespass and seeking possession. There was no response to the same and, thus, the suit was filed before the Court of District Judge (E&N), Gangtok, Sikkim, being the Title Suit No.6/2004 (renumbered) on 9.12.2002.
Judgment :- The trial court dismissed the suit vide judgment and order dated 31.10.2006, both on grounds of limitation as well as substantive merits. The consideration of merits was based on the fact that the original stamped receipts of payment of compensation had been taken note of in the record of proceedings, though the actual receipt was not available. The correspondence exchanged even inter-departmentally was stated to point to the compensation being paid, as also a letter which had been sent by late Man Bahadur Basnett, signifying his consent to transfer suit property upon payment of due compensation. On appeal being filed and registered before the High Court of Sikkim, being RFA No.2/2007, the same was examined on both issues and was dismissed on 29.5.2008. However, insofar as the aspect of limitation was concerned, the High Court disagreed with the findings of the trial court by relying upon Article 65 of the Limitation Act, 1963, which provided for a period of twelve (12) years in case of adverse possession. Such a case of adverse possession was opined to be difficult for the State Government to plead and in any case, on facts, had never been pleaded. It is also recorded that no notification under the said Act had been produced, nor was any record produced in that behalf. The actual signed and stamped receipts were also not placed on record. The inconsistent stand of the Government claiming that they had acquired the land while still collecting land revenue for the same was also noted. These aspects were sought to be balanced with the letter dated 20.3.1980, of late Man Bahadur Basnett, who had given his no objection to the acquisition if compensation was paid to him, and a letter dated 2.4.1980 of the Land Revenue Department forwarding the compensation to the District Collector for payment to late Man Bahadur Basnett. The land revenue records were stated not to be of such significance in the face of these documents, but sympathising with the predicament of the appellant and recognising the weaker position of the Government in the entire dispute, it was observed that the Government had no justification to keep holding on to the land revenue as collected from the appellant. Since no claim was made in that behalf, it was directed that the same should be refunded, if so asked for by the appellant, more so as the Government has to act as a "model litigant."
Supreme court held that :- We may note that even though rights in land are no more a fundamental right, still it remains a constitutional right under Article 300A of the Constitution of India, and the provisions of any Act seeking to divest any person from the rights in property have to be strictly followed[1*]. [1* N. Padmamma & Ors. v. S. Ramakrishna Reddy & Ors. (2008) 15 SCC 517] On the question regarding whether the land was acquired by due process of law, the court observed that the state did not even send a notice under section 4 of Sikkim Land (Requisition and Acquisition) Act, 1977, for showing intent of acquiring the said land.
It is also settled law that following the procedure of Section 4(1) of the Land Acquisition Act, 1894[2*] (akin to Section 5(1) of the said Act) is mandatory, and unless that notice is given in accordance with the provisions contained therein, the entire acquisition proceeding would be vitiated. An entry into the premises based on such non-compliance would result in the entry being unlawful[3*]. The law being ex-propriatory in character, the same is required to be strictly followed. The purpose of the notice is to intimate the interested persons about the intent to acquire the land. These provisions, as they read, of the said Act, thus, are also required to be so followed.
[2* Publication of Preliminary Notification and Powers of Officers thereupon.] [3* Narinderjit Singh & Ranjit Singh & Ors. v. State of U.P. &Ors., Etc. (1973) 1 SCC 157] The result of the aforesaid would be that the respondents have failed to establish that they had acquired the land in accordance with law and paid due compensation. The appellant would, thus, be entitled to the possession of the land as also damages for illegal use and occupation of the same by the respondents, at least, for a period of three (3) years prior to the notice having been served upon them. We are strengthened in our observations on account of the judgment of this Court in LAO v. M. Ramakrishna Reddy,5 where it was held that the owner can be entitled to damages for wrongful use and possession of land in respect of which no notification is issued under Section 4 of the Land Acquisition Act, from the date of possession till the date such notification is finally published. Therefore, the judgement was in the favour of the appellant and the respondent was ordered to decide whether they would want to claim the property by issuance of a lawful notification, or surrender their possession of the land.