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SUPREME COURT OF INDIA
Sanjay Kishan Kaul, K.M. Joseph, JJ.
D.B. BASNETT (D) Through LRs – Appellant
Versus
THE COLLECTOR East District, Gangtok, Sikkim & Anr. – Respondent
Civil Appeal No.196 of 2011
Decided on : 02-03-2020
Land Acquisition Act, 1894 – Section 4 – Limitation Act, 1963 – Article 65 – Sikkim Land (Requisition and Acquisition) Act, 1977 – Section 7 – Acquisition of land – There is no plea even of adverse possession by respondent – No notification has been shown to Court of intent to acquire land under Section 4, or any other declaration thereafter – No records are available in respect of acquisition process – There cannot be presumption of acquisition without following due process as envisaged under Sections 3(1), 4(2), 5(1) and 7(2) of 1977 Act – Even though rights in land are no more a fundamental right, still it remains a constitutional right under Article 300A of Constitution of India and provisions of any Act seeking to divest any person from rights in property have to be strictly followed – Following procedure of Section 4(1) of Land Acquisition Act, 1894 (akin to Section 5(1) of 1977 Act) is mandatory – Unless that notice is given in accordance with provisions contained therein, entire acquisition proceeding would be vitiated – An entry into premises based on such non-compliance would result in entry being unlawful – Law being ex-proprietary in character, same is required to be strictly followed – Purpose of notice is to intimate interested persons about intent to acquire land – Respondents have failed to establish that they had acquired land in accordance with law and paid due compensation – Appellant would be entitled to possession of land as also damages for illegal use and occupation of same by respondents – Mesne profits would be determined by a Court Commissioner, to be appointed by trial court, as a relief in that behalf has been sought in plaint itself. (Paras 11, 13, 14, 15, 19 and 20)
Facts of the Case:
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 present proceedings. Plea raised was that no notice of acquisition was ever published, nor any process followed for the same.
Findings of the Court:
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 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.
Result : Appeal allowed.
JUDGMENT
Sanjay Kishan Kaul. J.
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.
2. 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.
3. 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.
4. The sum and substance of the claim made was that the procedure envisaged under the Sikkim Land (Requisition and Acquisition) Act, 1977 (hereinafter referred to as the 'said Act') had not been invoked or followed. Suffice to say that the process is similar to the Land Acquisition Act, 1894 (hereinafter referred to as the 1894 Act'), i.e., notification required under Section 4 of the Act for acquisition of land, opportunity to interested persons to file claims under Section 5 of the Act and the determination of the amount of compensation under Section 7 of the Act. The plea raised was that no notice of acquisition was ever published, nor any process followed for the same.
5. Respondent No. 2 sought to raise a defence to the suit of the bar of limitation. It is their say that the Agriculture Department had followed due process while acquiring the land in 1980 and had paid compensation of Rs.62,645 to late Man Bahadur Basnett through the Land Revenue Department. Thus they were enjoying peaceful possession of the subject matter property as a consequence thereof. The claim of the late appellant that rent was being paid to the Government was stated not to be in the knowledge of the Agriculture Department.
6. 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.
7. 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 unde
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