REPORTABLE

IN THE SUPREME COURT OF INDIA CIVILAPPELLATE JURISDICTION

CIVIL APPEAL NO.196 OF 2011

D.B. BASNETT (D) Through LRs      … Appellant

versus

THE COLLECTOR East District, Gangtok, Sikkim & Anr.    …Respondents

J U D G M E N T

SANJAY KISHAN KAUL, J.

1. 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

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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.

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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.

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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

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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

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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

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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.

10. We may notice that though leave was granted, no cross-objections

were filed by the respondents on any aspect including on the finding of

limitation.

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 appeal.

12. We are in complete agreement with this view and for this reason

also the plea of adverse possession really does not survive.

13. That brings us to the question whether the process of acquisition

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had been followed in accordance  with law.   No 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,

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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 evidence.

14. 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

followed1.

1N. Padmamma & Ors. v. S. Ramakrishna Reddy &Ors. (2008) 15 SCC 517

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15. It is also settled law that following the procedure of Section 4(1) of

the Land Acquisition Act, 18942 (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 unlawful3.  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.

16. We find a detailed discussion about the law as it evolved and the

rationale  for  the  said  purpose  in  Vidya  Devi4 of  which  the  relevant

paragraphs read as under:

“10.1. The Appellant was forcibly expropriated of her property in 1967,  when  the  right  to  property  was  a  fundamental  right guaranteed by Article 31 in Part III of the Constitution.

2Publication of Preliminary Notification and Powers of Officers thereupon. 3Narinderjit Singh & Ranjit Singh & Ors. v. State of U.P. &Ors., Etc. (1973) 1 SCC  157 4(supra)

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Article 31 guaranteed the right to private property (The State of West Bengal v. Subodh Gopal Bose and Ors. AIR 1954 SC 92), which could not be deprived without due process of law and upon just and fair compensation.  

10.2. The right to property ceased to be a fundamental right by the Constitution   (Forty   Fourth   Amendment)   Act,   1978, however, it continued to be a human right (Tukaram Kana Joshi & Ors. v. M.I.D.C.  & Ors.  (2013)  1  SCC 353)  in  a  welfare  State,  and a Constitutional right under Article 300A of the Constitution. Article 300 A provides that no person shall  be deprived of his property save by authority of law. The State cannot   dispossess   a   citizen of   his   property   except   in accordance   with   the   procedure established   by   law.   The obligation   to   pay   compensation, though   not   expressly included in Article 300A, can be inferred in  that  Article  (K T Plantation  Pvt.  Ltd.  v.  State  of  Karnataka (2011) 9 SCC 1).

To  forcibly  dispossess  a  person  of  his  private  property, without  following  due  process  of  law,  would  be  violative  of  a human right, as also the constitutional right under Article 300 A of the Constitution.

Reliance   is   placed   on   the   judgment   in Hindustan Petroleum   Corporation   Ltd.  v. Darius Shapur   Chennai (2005) 7 SCC 627,wherein this Court held that:

“  6. … Having regard to the provisions contained in Article 300A   of   the   Constitution,   the   State   in exercise   of its   power   of   "eminent   domain"   may interfere with the right of property of a person by acquiring   the   same   but the   same   must    be   for   a  public   purpose   and reasonable   compensation therefor must be paid.”

  (emphasis originally supplied)

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In N. Padmamma v. S. Ramakrishna Reddy (2008) 15 SCC 517, this Courtheld that:

“21.  If  the  right  of  property  is  a  human  right  as  also  a constitutional   right,   the   same   cannot   be   taken away except  in  accordance  with  law.   Article  300A  of  the Constitution   protects   such   right.   The provisions of the Act  seeking  to  divest  such  right,  keeping  in  view of  the provisions of Article 300  A of the Constitution of India, must be strictly construed.”

(emphasis originally supplied)

In Delhi Airtech Services Pvt. Ltd. & Ors. v. State of U.P.& Ors. (2011) 9 SCC 354, this Court recognized the right to property as a   basic human right in the following words:

“30.  It is accepted in every jurisprudence and by different political   thinkers   that   some   amount   of property right is an indispensable safeguard against tyranny   and   economic oppression   of   the Government.  Jefferson was of the view that  liberty  cannot  long  subsist  without  the  support  of property." Property   must   be   secured,   else   liberty cannot subsist" was the opinion of John Adams. Indeed the view  that  property  itself  is  the  seed  bed  which  must  be conserved   if    other    constitutional    values   are   to flourish  is  the   consensus   among  political  thinkers  and jurists.”

(emphasis originally supplied)

In  Jilubhai  Nanbhai  Khachar  v.  State  of  Gujarat,  (1995) Supp. 1 SCC 596 this Court held as follows:

“48. …In other words, Article 300A only limits the powers of the State that no person shall be deprived of his property

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save  by authority  of  law.  There  has  to  be  no deprivation without any sanction of law.  Deprivation by any other mode is not acquisition or taking   possession   under   Article 300  A.   In    other  words,  if  there  is  no  law,  there  is  no deprivation.”

(emphasis originally supplied)

10.3.  In  this  case,  the  Appellant  could  not  have  been  forcibly dispossessed  of  her  property  without  any  legal  sanction,  and without following due process of law, and depriving her payment of  just  compensation,  being a  fundamental  right  on  the  date  of forcible dispossession in 1967.  

10.4. The   contention   of   the   State   that   the   Appellant   or her  predecessors  had  “orally”  consented  to  the  acquisition  is completely baseless. We find complete lack of authority and legal sanction in compulsorily divesting the Appellant of her property by the State.  

10.5. In a democratic polity governed by the rule of law, the State could  not  have  deprived a  citizen  of  their  property  without  the sanction of law. Reliance is placed on the judgment of this Court in Tukaram Kana Joshi &Ors. v. M.I.D.C. &Ors. (2013) 1 SCC 353 wherein it was held that the State must comply with the procedure for    acquisition,    requisition,    or    any    other  permissible statutory mode. The State being a welfare State governed by the rule  of  law  cannot  arrogate  to  itself  a  status  beyond  what  is provided by the Constitution.

This  Court  in  State  of  Haryana v.  Mukesh Kumar held that  the right to property is now considered to be not only a constitutional or statutory right, but also a human right. Human   rights   have been   considered   in   the   realm   of individual rights such as

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right to shelter, livelihood, health, employment, etc. Human rights have gained a multifaceted dimension.”

17. There is also a discussion in the judgment on the aspect of delay

and laches, which is as under:

“10.7. The contention advanced by the State of delay and laches of the   Appellant   in   moving   the   Court   is   also   liable   to   be rejected.  Delay  and  laches  cannot  be  raised  in  a  case  of  a continuing  cause  of  action,  or  if  the  circumstances  shock  the judicial conscience of the Court. Condonation of delay is a matter of  judicial  discretion,  which  must  be  exercised  judiciously  and reasonably in the facts and circumstances of a case. It will depend upon the breach of fundamental rights,  and the remedy claimed, and when and how the delay arose. There is no period of limitation prescribed for the courts to exercise their constitutional jurisdiction to do substantial justice.

In   a   case   where   the   demand   for   justice   is   so compelling, a   constitutional   Court   would   exercise   its jurisdiction with a view to promote justice, and not defeat it (P.S. Sadasivaswamy v. State of T.N. (1975) 1 SCC 152).

In  Tukaram Kana Joshi &Ors. v. M.I.D.C. &Ors. (2013) 1 SCC 353, this Court while dealing with a similar fact situation, held as follows:

“There  are  authorities  which  state  that  delay  and  laches extinguish  the  right  to  put  forth  a  claim.  Most  of  these authorities  pertain  to  service  jurisprudence,  grant  of compensation   for   a   wrong   done   to   them decades ago, recovery of  statutory dues,  claim for educational  facilities and other categories of similar cases, etc. Though, it is true that there are a few authorities   that   lay   down   that delay   and   laches debar   a   citizen   from   seeking remedy,   even   if   his fundamental right has been violated,

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under Article 32 or 226 of the Constitution, the case at hand deals with a different scenario altogether. Functionaries of the State took over possession of the land belonging to the Appellants  without  any  sanction  of  law.   The  Appellants had  asked  repeatedly  for  grant  of  the  benefit    of compensation.  The   State   must   either comply with the procedure laid down for  acquisition,  or    requisition,    or any   other   permissible   statutory mode.”

(emphasis originally supplied)

18. The aforesaid legal principles do not leave the respondents with

any defence in the given facts of the case.

19. 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.

5(2011) 11 SCC 648

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20. We are conscious that the land is being used by the respondent-

State through respondent No.2 Department.  That, however, does not give

such a license to the State Government.  We had endeavoured to refer the

matter  for  mediation,  to  find  an  amicable  solution,  but  that  did  not

fructify.  We, however, would like to give some time to the respondent-

State to analyse the consequences of this judgment, and, in case they so

desire, to acquire the land through a proper notification under the said

Act, and to take proper recourse in law so as to enable them to keep the

land.  We grant three (3) months’ time from the date of the judgment for

the respondent-State to make up their mind as to what they want to do.

Would they still like to retain the land by issuing a proper notification, or

would they like to surrender possession of the land.  In either eventuality,

the question of payment for use and occupation would still arise, which

will have to be determined in accordance with law. Mesne profits would

be determined by a Court  Commissioner,  to be appointed by the trial

court, as a relief in that behalf has been sought in the plaint itself.

21. In view of the aforesaid order, the alternative direction passed by

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the appellate court to refund the land revenue in case of a claim would

not arise.

22.   The appeal  is  accordingly allowed, leaving the parties to bear

their own costs.  

...……………………………J. [Sanjay Kishan Kaul]

...……………………………J. [K.M. Joseph]

New Delhi. March 2, 2020.

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