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Right to land is a constitutional right, the provisions of any Act seeking to divest any person from

D.B. BASNETT (D) Through LRs V THE COLLECTOR East District, Gangtok, Sikkim &Anr.CIVIL APPEAL NO.196 OF 2011.

On the aspect of the compensation, only a covering letter is available, and not the actual receipt,” said a bench of Justices Sanjay Kishan Kaul and K.M. Joseph as they heard a land acquisition matter to decide whether the due process of law was followed under Section 5(1) of the Sikkim Land (Requisition and Acquisition) Act, 1977, which is similar to the Land Acquisition Act, 1894.

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.

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. 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counsel for the respondents, time was given to scrutinize the record and show to the Court how a sum of Rs.62,645 was withdrawn by the Collector in cash (as alleged and as contended), and which document(s) evidenced payment to late Man Bahadur Basnett.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.

The Supreme court observed: “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 Supreme Court said the burden was on the state to prove that the process as envisaged under the said Act was followed and cited ample primary and secondary evidence on non-compensation. “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 stating that some receipt was being enclosed, acknowledging the payment in cash (without a receipt being found),” said the court.

The Supreme court observed that the government had failed to establish the acquisition of land in accordance with law. “The appellant/original landowner was, thus, entitled to the possession of the land and also damages for illegal use and occupation of the same by the respondents (Collector),” it said.

The Supreme Court, emphasizing on following due process of land acquisition, said:

“We may note that even though rights in land are no more 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.” With the said observations the court held that “The appeal is accordingly allowed, leaving the parties to bear their own costs.”

– Karthik K.P



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