Case: D.B.BASNETT (D) THROUGH LRS Vs. THE COLLECTOR EAST DISTRICT, GANGTOK, SIKKIM &amp; ANR

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 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.      8. In the SLP filed against the impugned order, leave was granted on 7.1.2011. The matter was, however, taken up for hearing for the first time on 2.5.2019. On hearing learned counsel for the parties, at the request of the learned counsel for the respondents, time was given to scrutinize the record and show to the Court how a sum of Rs.62,645 was withdrawn by the Collector in cash (as alleged and as contended), and which document(s) evidenced payment to late Man Bahadur Basnett. It was observed that this was the least expected considering that the respondents claimed to have lost all records of acquisition proceedings and none of the notifications were available. The order ended by observing that a failure to show the same would necessitate the State Government to acquire the land through fresh notification, if it wants to keep the land.      9. An affidavit was filed in August, 2019, which was analysed on 27.8.2019, and it was found that there was neither any proof of the Collector having withdrawn cash to the tune of Rs.62,645 from the account, nor any receipt from late Man Bahadur Basnett acknowledging the payment, except the stated covering letter for the receipt. In the conspectus of these facts, in order to work out a mutually agreed settlement, the dispute was referred to the Mediation Centre annexed to the High Court of Sikkim. Unfortunately this also did not produce any result, a failure report was received and, thus, the remaining arguments were heard.

Reasoning: 11. Be that as it may, the fact remains, as noticed by the High Court, that it is not the case of the respondents that they had adverse possession, but that they had acquired the land through due process and had paid compensation for the same. We agree with the High Court that there is no plea even of adverse possession by the respondent. We are not to be detained by the same in this appeal12. We are in complete agreement with this view and for this reason also the plea of adverse possession really does not surviveNo notification has been shown to us of the intent to acquire land under Section 4, or any other declaration thereafter. In fact what is claimed before us, as also before the courts below, is that no records are available in respect of the acquisition process. This obviously puts the respondent State in a difficult situation, which was sought to be got over by only relying on a consent having been obtained for acquisition and the compensation having been paid, as determined. On the aspect of the compensation, only a covering letter is available, and not the actual receipt. We have also observed aforesaid that an unusual process of making payment in cash is claimed to have been adopted, and the amount is not an insignificant amount, if we look at the year of acquisition. We even gave a further opportunity to the authorities to show, as to from which account this compensation was withdrawn by the Collector, but it appears that there is no proof even of the withdrawal of the amount, much less payment of the compensation. The letter dated 20.3.1980 of late Man Bahadur Basnett is no doubt a no- objection to the acquisition of land, but provided compensation was paid subsequently. This letter does not obviate the need to furnish proof of the process for acquisition of land or for the determination of compensation, under the said Act. There cannot be a presumption of acquisition without following the due process as envisaged under Sections 3(1), 4(2), 5(1) and 7(2) of the said Act. The burden was on the State to prove that the process as envisaged under the said Act was followed and the compensation paid. Not an iota of evidence has been laid in support of any of these aspects, except the willingness of late Man Bahadur Basnett to permit the land to be acquired on payment of compensation, the forwarding of the amount by the Land Revenue Department to the District Collector through a cheque, and thereafter a letter from the Collector/respondent No.1 stating that some receipt was being enclosed, acknowledging the payment in cash (without a receipt being found). There is, thus, absence of both primary and secondary evidence14. 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 N. Padmamma & Ors. v. S. Ramakrishna Reddy &Ors. (2008) 15 SCC 517  15. It is also settled law that following the procedure of Section 4(1) of the Land Acquisition Act, 1894 (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 Narinderjit Singh & Ranjit Singh & Ors. v. State of U.P . &Ors., Etc. (1973) 1 SCC 157  .  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 followed18. The aforesaid legal principles do not leave the respondents with any defence in the given facts of the case