Provisions of any law seeking person to divest any person from the rights in property have to be strictly followed

Kosha Doshi | Symbiosis Law School, Pune | 16th March 2020

DB Basnett v. The Collector [Civil Appeal No. 196 of 2011]

Facts:

            A land had been acquired in the year 1980 on which a center named “Progeny Orchard Regional Centre” had been built. The acquisition of land by the Agriculture Department of the Government of Sikkim had been challenged on the following reasons that notice of acquisition had not been given or published, nor had they followed the procedure established by law. The case hinges on the claim that procedure under Sikkim Land (Requisition and Acquisition) Act, 1977 had not been followed and thereby the State unlawfully had encroached on the appellant’s property. 

            The case was appealed in the Supreme Court as a SLP challenging the 2008 verdict of the Sikkim High Court. This case was first taken up in May, 2019. The disputed land measuring 8.36 acres located in Dundung Block, Sang, East Sikkim was divided into two parts measuring 1.29 acres and 7.07 acres wherein the latter land is the disputed area. 

Issue:

            Whether process of acquisition had been in accordance with the procedure of law followed under Section 5 (1) of the Sikkim Land (Requisition and Acquisition) Act, 1977? And whether right in land is not a Fundamental Right but still does it remain an important Constitutional Right or not?

Judgment:

            Deciding on the merits of the case, the court re-emphasized that the land acquisition law is expropriator in nature and needs to be strictly followed. The Supreme Court stated that even though the right in land is not a Fundamental Right but it still remains an important constitutional right. Under Article 300 A of the Indian Constitution, no person shall be deprived of property save by in accordance with procedure established by law. The constitutional right in land plays an important role as it has reference to Land Acquisition Act, 1894.  

            The court observed that no notification existed showcasing the intent to acquire the land under Section 4 of the Sikkim Land (Requisition and Acquisition) Act, 1977. Further there existed no records of the acquisition process being followed. Even more no actual receipt of payment existed and the mode of payment was in cash. The court with a bench comprising of Justice Sanjay Kishan Kaul and Justice KM Joseph said that there cannot be a presumption of acquisition without following due process under Section 3 (1), 4 (2), 5 (1) and 7 (2) of the Sikkim Land (Requisition and Acquisition) Act, 1977. 

            The burden of proof lay on the State to show that process had been followed but the state failed to produce evidence to prove the same. The Supreme Court stated that the provisions of law need to be followed in the strict sense, seeking to divest any person from rights in property. State does not have adverse possession but acquired land through due process and paid compensation for same. But the onus on state to prove that land was acquired through proper procedure failed. 

            An entry into the premise based on non-compliance would result in the entry being unlawful. The appellant was entitled possession of land and damages for illegal use of the land. This judgment passed on 2^nd March, 2020 stated thatProvisions of any law seeking to divest any person from the rights in property have to be strictly followed.