AP Land Grabbing Act Back to description

THE ANDHRA PRADESH LAND GRABBING (PROHIBITION) ACT, 19821

[Act No. 12 of 1982]

Statement of Objects and Reasons

It has come to the notice of the Government that there are organised attempts on the part of certain lawless persons operating individually and in groups to grab either by force, or by deceit or otherwise lands belonging to the Government, a local authority, a religious or charitable institution or endowment, including wakf or any other private person. The land grabbers are forming bogus co­operative housing societies or setting up fictitious claims and including in large scale and unprecedented and fraudulent sales of land through unscrupulous real estate dealers or otherwise in favour of certain section of people, resulting in large scale accumulation of the unaccounted wealth. As public order is also adversely affected thereby now and then by such unlawful activities of land grabbers in the State, particularly in respect of urban and urbanisable lands, it was felt necessary to arrest and curb such unlawful activities immediately by enacting a special law in that regard.

As the State Legislature was not then in session and as it was considered necessary to give effect to the above decision immediately the Andhra Pradesh Land Grabbing (Prohibition) Ordinance, 1982, was promulgated by the Governor on the 29th June, 1982.

Reserved by the Governor on the 24th August, 1982 for the consideration and assent of the President. Received the assent of the President on the 14th September, 1982. Published on the 6th September, 1982 in the Andhra Pradesh Gazette part IV-B (Ext.) page 1.

An Act to prohibit the activity of Land Grabbing in the State of Andhra Pradesh and to provide for matters connected therewith.

Whereas there are organised attempts on the part of certain lawless persons operating individually and in groups, to grab, either by force or by deceit or otherwise, lands (whether belonging to the Government, a local authority, a religious or charitable institution or endowment, including a wakf, or any other private persons) who are known as "land grabbers."

And whereas such land grabbers are forming bogus co-operative housing societies or setting up fictitious claims and indulging in large scale and unprecedented and fraudulent sales of lands belonging to the Government, local authority, religious or charitable institutions or endowments including a wakf or private persons, through unscrupulous real estate dealers or otherwise in favour of certain sections of the people resulting in large accumulation of unaccounted wealth and quick money to land grabbers;

And Whereas, having regard to the resources and influence of the persons by whom, the large scale on which and the manner in which, the unlawful activity of land grabbing was, has been or is being organised and carried on in violation of law by them, as land grabbers in the State of Andhra Pradesh and

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1. The Act, passed by the Andhra Pradesh Legislature, was reserved by the Governor on 24th of August, 1982 for the consideration and assent of the President and the President assented on the 4th September, 1982 and was published in Andhra Pradesh Gazette, Part IV-B (E.O.) dt. 6th September, 1982.

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particularly in its urban areas it is, necessary to arrest and curb immediately such unlawful activity of land grabbing;

And Whereas public order is adversely affected by such unlawful activity of land grabbers:

Be it enacted by the Legislature of the State of Andhra Pradesh in the Thirty-third Year of the Republic of India as follows:

1. Short title, extent, application and commencement: —

(1) This Act may be called the Andhra Pradesh Land Grabbing (Prohibition) Act, 1982.

 (2) H3)

It extends to the whole of the State of Andhra Pradesh. It applies to all lands situated within the limits of urban agglomeration as defined in clause (n) of Section 2 of the Urban Land (Ceiling and Regulation) Act, 1976 and a Municipality. 2(3-A) It applies also to any other lands situated in such areas as the Government may, by notification specify having due regard to: —

(a)              the urbanisable nature of the land; or      V

(b)             the usefulness or potential usefulness of such land for
commercial, industrial, pisiculture of Prawn-culture purposes]

(4) It shall be deemed to have come into force on the 29th June, 1982.

NOTES

Legislative History : The Andhra Pradesh Land Grabbing (Prohibition) Ordinance 9 of 1982 and the A.P. Land Grabbing (Prohibition) Rules, 1982, were framed thereunder by G.O. Ms. No. 967, Revenue (L) 5th July, 1982, exercising powers under Sec. 18 of the Ordinance. Superseding those Rules, new Rules were framed by G.O. Ms. No. 396 (Rev), dt. 30-5- 1 988. the said Ordinance was repealed by A.P. Act 1 2 of 1 982 , which was reserved by Governor on the 4th August, 1982 for consideration and received the assent of the President on the 4th Sept., 1982 and published in A.P. Gazette, Part IV-B (E.O.) dt. 6-9-1982. A.P. Act 12 of 1982 is deemed to have come into force on 29-6-1982 [See. Sec. 1 (4)1 A.P. Act 12 of 1982 was extensively amended by the A.P. Land Grabbing (Prohibition) (Amendment) Ordinance 4 of 1986 and this Ordinance was replaced by the A.P. Land Grabbing (Prohibition) (Amendment) Act 16 of 1987, which was reserved by Governor on the 28th January, 1987 for consideration and assent of the President: received the assent of the President on the 14th February, 1987 and was published in the A.P. Gazette Part IV-B (Extraordinary) dt. 20-2-1987 and it is deemed to have come into force on 18-9-1986. See Sec. 1 (3). A.P. Act 12 of 1982 was again amended by A.P. Act 16 of 1988 which received the assent of the Governor on 18th January, 1988 and published in A.P. Gazette Part IV-B (Extraordinary) dt. 19-1-1988 and again amended by A.P. Act, 21 of 1988 which received the assent of the Governor on 27-8-1988 vide A.P. Gazette, Part IV-B (Ext.) dt. 27-8-1988. The Act was further amended by A.P. Act 18 of 1994 which receive the assent of the Governor on 29th April, 1994 and published on 4th May, 1994 in A.P. Gazette, Part IV-B Extraordinary.

Sec 1 (3) :- The Act applies to lands situated in ( 1 ) the urban agglomeration as defined in Sec. 2 Cl. (n) of the Urban Land (Ceiling and Regulation) Act, 1976 quoted infra, (2) the Municipalities and (3) to any other lands in other areas that the Government may notify.

Sec. 2 (n)   of the Central Act 33 of 1976 reads:

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1.            For original sub-sec. (3) subs, by Act 16 of 1987 (w.e.f. 18-9-86).

2.            Subs, by Act 18 of 1994 (w.e.f. 4-4-1994).

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(n) 'urban agglomeration" :—

(A)  in relation to any State or Union territory specified in column (1) of Schedule I,
means,—

(i) the urban agglomeration specified in the corresponding entry in column (2) thereof and includes the peripheral area specified in the corresponding entry in column (3) thereof : and

(ii) any other area which the State Government may, with the previous approval of the Central Government having regard to its location, population (population being more than one lakh) and such other relevant factors as the circumstances of the case may require, by notification in the Official Gazette, declare to be an urban agglomeration and any agglomeration so declared shall be deemed to belong to category D in that Schedule and the peripheral area therefor shall be one kilometre :

(B)  in relation to any other State or Union territory, means any area which the State
Government may, with the previous approval of the Central Government, having
regard to its location, population (population being more than one lakh) and such
other relevant factors as the circumstances of the case may require, by notification
in the Official Gazette declare to be an urban agglomeration and any agglomeration
so declared sr all be deemed to belong to category D in Schedule I and the peripheral
area therefor shall be one kilo metre :"

Schedule I of the said Act in so far as the State of Andhra Pradesh is as follows:

 State/Union territory Towns Peripheral area Category (D (2) (3) (4) Andhra Pradesh (1) Hyderabad Urban 5Kms. B Agglomeration (a) Hyderabad Municipal Corporation (i) Hyderabad Division (ii)  Secunderabad Municipal Corporation Division (b) Secunderabad Contonment Cantonment (c) Malkajgiri Panchayat (d) Alwal Panchayat (e) UppalKhalsa Panchayat (f) Balanagar Panchayat (g) Fatehnagar Panchayat (h) Macha Bolaram Panchayat (i) Osmania University (j) Lalaguda (k) Kukatpalle Panchayat (1) Moosapet Panchayat (m) Bowenpalle (n) Zamistanpur

 (1) (2) (3) (4) 2.Visakha- (a) Visakhapatman Urban Agglomeration 5Kms. C patnam (i) VIsakhapatnam Municipality (ii) Gajuvaka (O.G. out Growth) (b) Gopalapatnam Panchayat 3. Vijayawada Urban Agglomeration 5 Kms. C (a) Vijayawada Municipality (b) Patamata Panchayat (c) Gunadala Panchayat 4. Guntur Municipality 1 Km. D 5. Warangal Municipality 1 Km. D

2. Definitions:—

In this Act, unless the context otherwise requires:— '[(a)   *   *   *]

(b) "Government" means the State Government; {c) "land" includes rights in or over land, benefits to arise out of land, and buildings, structures and other things attached to the earth or permanently fastened to anything attached to the earth; 2(cc) 'land belonging to a private person' means any land belonging to.— (i) an evacuee; (ii) a military personnel; or (iii) any other private individual;

The value or the extent of which or the nature of the evil involved shall be of substantial nature or in the interest of justice required'.]

(d)           "land grabber" means a person or a group of persons who commits
land grabbing and includes any person who gives financial aid to
any person for taking illegal possession of lands or for construction
of unauthorised structures thereon, or who collects or attempts to
collect from any occupiers of such lands rent, compensation and
other charges by criminal intimidation, or who abets the doing of
any of the above mentioned acts, and also includes the successors-
in-interest;

(e)            "land grabbing" means every activity of grabbing of any land
(whether belonging to the Government, a local authority, a religious
or charitable institution or endowment, including a wakf, or any
other private person) by a person or group of persons, without any
lawful entitlement and with a view to illegally taking possession of
such lands, or enter into or create illegal tenancies or lease and
licence agreements or any other illegal agreements in respect of
such lands, or to construct unauthorised structures thereon for
sale or hire, or give such lands to any person on rental or lease and
licence basis for construction,  or use and occupation,  of

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1.            Clause (a) omitted by Sec. 3(1) of Act 16 of 1987.

2.            Clause (cc) added by ibid.

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unauthorised structures; and the term "to grab land" shall be construed accordingly;

Gazette; and the word "notified" shall be construed accordingly;

(g)           "person" includes a group or body of persons, an association, or a
religious  or  charitable  institution  or  endowment,  whether
incorporated or not;

(h) "prescribed" means prescribed by rules made by the Government

under this Act; 1 ["(i)  'Schedule' means a Schedule appended to this Act;

(i-a)  'Special Court' means a Special Court constituted under Section?; (i-b) 'Special Tribunal' means a Court of the District Judge having jurisdiction over the area concerned and includes Chief Judge, City Civil Court, Hyderabad".]

(j) "unauthorised structures" means any structure constructed, without express permission in writing of the Municipal Commissioner in any Municipal Corporation or Municipality, and elsewhere of the authority concerned, or except in accordance with any law for the time being in force in the area concerned.

NOTES

Sec. 2 (c) : The definition of land is inclusive and not exhaustive. Sec. 2(cc) : The Act as amended seeks to provide remedy to a private person, whose land is grabbed. Identical remedies are available before courts deriving power and jurisdiction under the A.P. Civil Courts, Act 1972. Thus a situation is likely to arise, wherein all suits for ejectment from land may have to be instituted before the Special Court and Special Tribunals constituted under this Act and thereby create the problem of overburden, which the scheme of the Act seeks to prevent to achieve expeditious disposal. Hence Sec. 2(cc) lays down that only those lands of private persons which by (1) its value or (2) extent or (3) the nature of the evil involved (i) being of substantial nature (ii) requiring interference in the interest of justice. If follows that remedies with regard to lands of private persons not falling within the definition Sec. 2(cc) can only be sought in Civil and Criminal Courts functioning under the A.P. Civil Courts Act and Criminal Procedure Code.

Sec. 2(d) : "land grabber" is he who commits land grabbing. Hence the definition of "land grabbing" is to be read into the definition of land grabber'. Sec. 2 (e) : "Land grabbing" means I Grabbing of any land belonging to —

(1)        'the Government' which is defined as State Government by Sec. 2 (b) but not Central
Government.

(2)        'a local Authority' is not defined by this Act. (The A. P. General Clauses Act. S . 1 7 and
the General Clauses Act Central Act X of 1897 Sec. 31 Define 'Local authority' as
'a Municipal Committee', District Board, Body of Commissioners or other authority
legally entitled to, or entrusted by the Government with the control or management
of a municipal or local fund').

(3) 'a religious or charitable institution or endowment, including a wakf .
Definitions of the following phrases, 'with reference to Hindu Religion', are found in the

A.P. Charitable and Hindu Religious Institutions and Endowments Act, 1987:

"Sec 2 (3) : 'charitable endowment', means all property given or endowed for any charitable purpose ;

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1.   For Clause (i) substituted by Act No. 16 of 1987 (w.e.f. 18-9-86).

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Explanation I:— Any property which belonged to or was given or endowed for the support or maintenance of a charitable institution or which was given, endowed or used as of right for any charitable purpose shall be deemed to be a charitable endowment within the meaning of this definition, notwithstanding that.before or after the commencement of this Act, the charitable institution has ceased to exist or ceased to be used for any charitable purpose or the charity has ceased to be performed.

Explanation II:—Any Inam granted to a service holder or to an employee of a Charitable institution for the performance of any charity or service in connection with a charitable institution shall not be deemed to be a personal gift to the service holder or to the employees notwithstanding the grant of ryotwari patta to such service holder or employee under the Andhra Pradesh (Andhra Area) Inams (Abolition and Conversion into Ryotwari) Act, 1956, shall be deemed to be a charitable endowment;

Sec.2(4): 'Charitable institution' means any establishment, undertaking organisation or association formed for a charitable purpose and includes a specific endowment and dharmadayam;

(5) 'Charitable purpose' includes—

(a)        relief of poverty of distress :

(b)       education :

(c)        Medical relief;

(d)  advancement of any other object of utility of welfare to the general public or a
section thereof not being an object of an exclusively religious nature ;

Sec. 2 (22).--'Religious Endowments' means property (including moveable property), and religious offerings whether in cash or kind, given or endowed for the support of a religious institution or given or endowed for the performance of any service or charity of a public nature connected therewith or of any other religious charity ; and includes the institution concerned and also the premises thereof.

Explanation I:— All property which belonged to or was given or endowed for the support of a religious institution, or which was given or endowed for the performance of any service or charity of a public nature connected therewith or of any other religious charity shall be deemed to be a religious endowment within the meaning of this definition, notwithstanding that, whether before or after the commencement of this Act, the religious institution has ceased to exist or ceased to be used as a place of religious worship of institution or the service or charity has ceased to be performed.

Explanation II:—Any Inam granted to an archaka, service-holder or other employee of a religious Institution for the performance of any service or charity in connection with a religious institution shall not be deemed to be a personal gift to the archka, service-holder or employee notwithstanding the grant of ryotwari patta to an archaka, service-holder or employee under the Andhra Pradesh (Andhra Area) Inams (Abolition and Conversion into Ryotwari) Act, 1956 but shall be deemed to be a religious endowment".

Sec.2 (23).'-'Religious institution' means a math, temple or specific endowment and includes a Brindavan, Samadhi or any other institutions established or maintained for a religious purpose endowments and institutions of other religions, such as Christianity also come within the definition'.

The Wakf Act, 1954 defines:- "Wakf   means a permanent dedication by a person professing Islam of any moveable or immovable property for any purpose recognised by the Muslim law as pious, religious or charitable and includes (i) a wakf by user (ii) grants (including Mashrus-ul-khidmat) for any purpose recognised by the Muslim law as pious, religious or charitable and includes (i) a wakf by user (11) grants (including Mashrut ul-khidmat) for any purpose recognised by the Muslim law as pious, religious or charitable and (ill) a wakf-al-alaulad to the extent to which the property is dedicated for any purpose recognised by Muslim law as pious, religious or charitable ; (4)  any other private person, as defined by Sec. 2(cc) II. The activity of grabbing must be :

(A)       without any lawful entitlement and

(B)       with a view to :

(1)        illegally taking possession of such lands\or enter into or

(2)        create illegally (a) tenancies or (2) lease and (c) licence (d) agreements or (e) any other
illegal agreements

(3)        Construct unauthorised structures thereon for (a) sale or (b) hire

(4)  give (a) on rental or (b) lease and (c) on licence basis for (i) construction or (ii) use
and occupation of unauthorised structures on such land.

The definition of 'land grabbing' is important. The meaning of the phrase. "Land grabbing" shall be read a long with the provisions of the Act, as key to understand the offence or wrong sought to be prohibited. The 'Land grabber' shall not have any lawful entitlement in the land involved. The accused or defendant can plead lawful title to the land or a legal right to his activity with reference to such land. It can be said that possessory title, which is protected by law, is a valid defence.

Possession obtained under the A.P. Land Encroachment Act, 1905:— Lawful entitlement to the land, possession thereof or right to any activity with reference to such land, shall be judged by the law in force on the date of the commission of land grabbing. When a person occupies a land, which is assessed or unassessed waste or tank, Vagu' road and other kinds poramboke vested in the Government, it is unauthorised occupation. The unauthorised occupier of the land will be assessed to pay amounts prescribed by the rules made under the A.P. Land Encroachment Act, 1905. Apart from payment of such assessment, an amount of penalty might be ordered to be paid. It may be noted that such payments of assessment and penalty shall not confer on him any right of occupancy. Such occupier is liable to be summarily evicted after written notice. When the scheme of Land Encroachment Act is examined, we may find that all occupations of Government land are not unlawful. There may be certain unauthorised occupations tolerated and condone by collecting assessment and penalty. This unauthorised occupations may change into unlawful occupation, if the occupier continues tooccupy inspite of the Written notice under Sec. 7 of the Act and failure to show cause why the proceeding contemplated under Sees. 5 and 6 of the Act cannot be taken. It may be reasonably said that at this stage the occupation becomes unlawful and the A.P. Land Grabbing (Prohibition) Act is attracted.

Position obtained under the A.P. Assigned Lands (Prohibition of Transfers) Act, 1977

Transfers of lands assigned by Government to the landless poor persons under rules, subject to condition of non-alienation and lands allotted or transferred to them under laws of land ceiling, were declared to be null and void. Such lands shall not be transferred and shall be deemed never to have been transferred, under Sec. 3 of the Act. Under Sec. 4, such transferred land should be restored to the original assignee. Such restoration shall be only once. Thereafter the Government shall resume the land. The nature of possession of occupation of the transferee under the prohibited transfer is important. The transfer itself is null and void and the Government has a right to restore the assigned land to the original assignee. Can such land be said to belong to the Government. The Land Grabbing (Prohibition) Act includes rights in or over the land in the definition of'land'. The right to take possession from the unlawful transferee and the power to resume vested in the Government can be said to be right in the land. It is more so, when the Original assignee transferred the land twice. In such a case, the District Collector or any other officer not below the rank of aTahsildar can take possession of the assigned land excersing powers under Sec. 4 (2) of the Assigned Lands (Prohibition of Transfers) Act hereinafter referred to as Assigned Lands Act. It may be noted that the decision of the District Collector or other authority regarding the transfer or the possession of the transferee and dicisions to be made by Special Court and Special Tribunal, under Sec. 7(1) and 7-A (1) of Land Grabbing Act appear to be same and need the same kind of enquiry. It is to be seen whether the power of the District Collector or other authority under the Assigned Lands Act, is in conflict, with powers of the Special Tribunal and hence the powers of the District Collector or other authority are taken away by Sec. 15 of the Land Grabbing (Prohibition) Act. The penal liability of the acquirer of the assigned land and punishment provided under Sees. 7(1) of the Assigned Lands Act is far less than provided under Sees. 4 and 5 of Land Grabbing Act. If the Courts were to interpret that the transferee of an assigned land is grabber within the meaning of Land Grabbing Act, then the Land Grabbing Act will apply and the Special Court and Special Tribunal, to the exclusion of any other Court or authority, will have power and jurisdiction.

Possession obtained under the A.P. Public Premises (Eviction of Unauthorised Occupants) Act, XX of 1968:—

(Referred to as Public Premises Act)

Any building or part of a building, out houses, gardens, grounds and vacant site, if any appertaining to such building or part of a building belonging to or taken on lease or requisitioned by or on behalf of or otherwise in possession of the Government, is public premises as defined in Sec. 2(d) and (e) of the Public Premises Act. The Estate Officer appointed under the Act is empowered under Sec. 4 (1) to issue a notice to show cause why an order of eviction should not be made and pass an order of eviction for reasons to be recorded, under Sec. 5 (1) of the Public Premises Act. The estate officer can take possession of the public premises under Sec. 5(2) of the said Act. The question regarding the supersession of the powers and jurisdiction of the. Estate Officer, the questions to lawful possession and entitlement to the property by Sec. 15 and other provisions of the Land Grabbing Act will again surface. The questions would turn on the point whether the occupier of the public premises is an unlawful occupier and without any lawful entitlement and comes within the teeth of the definition of "Land Grabber" , under the Land Grabbing Act.

Possession obtained under the A.P. Charitable and Hindu Religious Institutions and Endowments Act 30 of 1987.

(Referred to as Public Premises Act).

Sec. 83: (1) Explanation in the Endowments Act reads 'For the purpose of this Chapter the expression 'encroacher' shall mean any person who unauthorisedly occupies any land or building or space and deemed to include any person who is in occupation of the land or building or space without the approval of the competent authority sanctioning lease or mortgage ; or licence and also a person who continues to remain in the land or building or space after the expiry or termination or cancellation of the lease, mortagage or licence in respect thereof granted to him or it".

Whether an "encroacher" as explained supra will be a Land Grabber, is a question to be determined. The land with or without superstructure belonging to a religious or charitable institutions or endowment is governed by the Land Grabbing Act. Under the provisions of the Endowments Act, the Deputy Commissioner of the Department will have jurisdiction to enquire into and decide the issue regarding the possession of the occupier. An order of the Deputy Commissioner whether to remove encroachment and for delivery of possession of the Land is not complied with the Assistant Commissioner can take possession of the land. It is to be seen whether these powers of the Deputy Commissioner and Assistant Commissioner are superseded and the Special Court and Special Tribunals alone have powers and jurisdiction.

The point to be decided is whether an "encroacher" within the meaning of Sec. 83 (1) Expl. of Endowments Act is similar to "Land Grabber" within the meaning of Sec.2 (d) of the Land Grabbing Act. In the like manner, unlawful possession arising in view of other statutory provisions and legal situations are to be examined, for instance the position of non-tribunal transferee under the A.P. Scheduled Areas Land Transfer Regulation Act, 1959. For example, is a tenant-at-sufferance a land grabber because his possession is not lawful. Whether a person, who acquired possessory title by adverse possession for the statutory period, has lawful entitlement and so cannot be 'land grabber'?- is question of utmost importance to be decide.

It appears that to render a finding of guilt and to punish the land grabber, as well as grant remedies of civil nature, it is necessary that an amount of mens rea or guilty mind shall be present in the wrong doer. This can be inferred from the definition of 'land grabbing', wherein it is stated that the act of grabbing shall be with a view to achieve certain things elaborately enumerated in the definition. Mens rea assumes various degrees and those various states of mind are expressed by the terms such as intention, knowledge, negligence, rashness, motive, or malice and so on. The phrase, 'with a view' is not generally used in the status to express a state of mind nor is the phrase dealt with by any standard work on Jurisprudence. According to Chambers (20th century) Dictionary, 'with a view to' means, having in mind or with a design of. According to the shorter Oxford English Dictionary, it means, 'with the aim or object of obtaining, effective or accomplishing

something'. Thus it is to be inferred that the phrase, 'with a view to indicates a state of mind which envisages foresight of consequence of an act and a desire to achieve it. Thus the pharse takes us nearer to the word 'intention'. "Intention is a combination of foresight and desire". See Solomond on Jurisprudence (XII edition) page 368. The consequences that are intended to be achieved by the land grabber are exhaustively enumerated as found in Note II (B) supra. It can also be said that the phrase, 'with a view to' may mean motive in that personal advantage detailed in the definition of land grabbing is sought to be achieved by the wrong doer.

It may be said that actus reus (physical act or omission) in "land grabbing" is every activity to illegally take possession or enter into land. If some of the ingredients of the definitions are split up and distinctively read, it will lead to an inference that creation are split up and disjunctively read, it will lead to an inference that creation of tenancy, lease, licence or agreements simpliciter without taking possession of or entering into the land would constitute the wrong. But in this context, it should also be remembered that the actus reus is not 'All activity' but 'every activity of grabbing of any land'. The word 'grabbing' is not defined in the Act. The literal meaning of the word 'grab' is 'sudden grasp or clutch-unscrupulous seizure ;according to Chambers Dictionary. The Shorter Oxford English Dictionary gives the meaning as, 'to grasp or seize suddenly and eagerly; hence to appropriate unscrupulosuly'. Form a conprehensive view of the definition it appears that some activity relating to possession of or entry into land is necessary. Whether mere giving the land to any person on rental or lease or licence without entry into land or any activity touching possession of the land amount to land grabbing, depends on future interpretation. But giving on rental, lease or licence amounts causing land grabbing, punishable under Section 4.

CASE LAW

Sec.2(a)(e) - Definitions of land grabber and land grabbing - Section 7-A - Case of respondents that the Government had encroached on their lands through its officers. State cannot claim immunity from the action against encroachment. Definition of person inSec.2(g) of the Act includes the Government meaning its officers. State of A.P. vs. Special Tribunal 2001 (1) ALT 479.

Sees. 2(d)(e), 7 and 8 and Constitution of India, Art. 226. Petition for issuance of a writ declaring that L.G.C. 167 of 1999, filed by second respondent (Special Dy. Collector, Land Protection, Hyderabad), against petitioner- Society, on the file of the 1st respondent (Special Court under A.P. Land Grabbing (Prohibition) Act, Hyderabad) is not maintainable and barred by principles of Res Judicata. Anand Prabat Co-op. Housing Society Ltd. vs. Spt. Court under A.P.L.G. (Prohibition) Act, 2001 (1) ALT 609 = 2001 ALT (Rev.) 1.

Sections 2 (d)(e)(j) - Definitions of 'Land grabber', 'Land grabbing' and unauthorised structres. AnandPrabat Co-op. Housing Society Ltd. vs. Spl. CourtunderA.P.L.G. (Prohibition) Act, 2001 (1) ALT 609.

The successors-in-interest does not mean, only the legal heirs of the grabber, it includes the transferees from the original land grabber. Gusoni Steels (Put.) Ltd. and others vs. ShanthaBai, 2000 (2) An.W.R. 84 (D.B.).

In NewJaji Labour Society, Vijayawada, Represented by its President, BuvveMariyamma vsHaji Abdul RahamanSahab, 1991 (1) ALT 112 = 1992 (l)APLJ 142.

The Respondents in the Civil Revision Petition before High Court of Andhra Pradesh filed Land Grabbing Original Petition before the District Judge, Krishna, claiming that they were owners of the land described in the petition schedules having acquired under registered deeds and that they were in possession of the lands. It was alleged that on 19-4-1981 some persons tresspassed into the land of the Second Petitioner in O.P., raised Huts and illegally sqatted on the land. On appliation under Sec. 145 Cr.P.C. the Taluk Magistrate held that the huts be removed. Again on 15-8-1981 Burre Mariamma and others formed into an unlawful assembly, trespassed and raised huts. They formed into a bogus society, New Jaji Nagar Labour Society and registered it on 16-6-1983. The President and Secretary are Respondents 1 and 2 in the O.P. They errected sheds and dug a water bore. In the above circumstances, the O.P. was filed. The Society filed counter denying the alleged title deeds and possession of the petitioners. The District Judge made

over the O.P. to the Additional District Judge, who held that he had jurisdiction, the land was grabbed and ordered eviction.

(i) It was contended on behalf of Revision Petitioners that the Additional District Judge had no jurisdiction to decide a land grabbing case and only the District Judge, as PERSONA DESIGNATA under the Act can exercise jurisdiction. On the exclusion of the provisions of the Code of Civil Procedure and the A.P. Civil Courts Act under the "non abstante" clause, Sec. 8 (2) is only for the purpose of conferment of jurisdiction on the Special Courts in regard to the matter enumerated in Sec. 8 (2) for sub-sections 3 and 5 provide that in any Trial of cases before the Special Court, it shall follow the procedure prescribed by the code of Civil Procedure. The Special Court shall be deemed to be a Civil Court and every finding of the Special Court regarding the acts of land grabbing shall be conclusive proof of the fact under Sec. 8 (6). Under Sec. 2(i) as it stood before the amendment it was the District Judge having jurisdiction over the area, if no Special Court was constituted. Whether the District Judge having jurisdiction over the area is "persona designate? for the purposes of Special Court under the Act is the question. PERSONA DESIGNATA means, a person pointed out or described as an individual, as opposed to a person ascertained as a member of a class or as filling a particular character, as per the Law Dictionary by P.G.Osborn.

(2) The Court reviewed the case law on the meaning of "persona designata". Firstly

inRamachandraRaovs. State of Madras A.l.R. 1962 A.P. 58, Justice Kumaraiah,

as he then was, considered the question under Sec. 16 of the Telegraph Act.

where under an application filed before the District Judge for determination of

compensation under Sec. 16 was made over to the Additional District Judge in

exercise of the powers under Sec. 3-A of the Madras Civil Courts Act;. The

learned Judge observed, "surely if he be a judicial officer as in this case and is

intended by the statute to act not otherwise than in a judicial capacity or Court

of Civil Jurisdiction, he cannot come within the expression "persona designata",

so that he may, irrespective of his continuance in office, perform the duty".

In Public Prosecutor us. L.Ramaioh, the question that fell for consideration was whether

the District and Sessions Judge who was acting as Judicial Authority under Sec. 6(6) of

the Essential Commodities Act is "persona designata", which would determine the

Appellate Forum. The Full Bench laid down the distinguishing features. 1974 (2) A.P.L. J.

305 (FB).

(1)     Where, by Statute, matters are referred to the determination of a Court with no
further provision, the necessary implication is that the Court will determine the
matters as a Court, Its jurisdiction is enlarged with all the incidents of such
jurisdiction.

(2)     Where a person is indicated not by name but by official designation the question
always arises whether, the intention was to signal him out as a persona
designata i.e. as an individual the designation being merely his further
description. The question whether such a person is a persona designata or not
depends upon the intention to be gathered from the words used, nature of the
functions to be performed and object and purpose to be achieved.

(3)     When a reference is made to an officer presiding over a Court and not the court
itself, it does not necessarily follow that such a person is intended to act as a
"persona designata". and not as a Court because it is quite an ordinary practice
for a reference to be made to the officer presiding over the Court even when the
intention is to refer to the Court. The mention of the officer presiding over the
Court instead of the Court does not by itself imply that he is intended to act as
a persona clestgriata and not as a Court.

(4)     When a statute confers authority on a judicial officer one should be slow in
saying that the legislatures confers such authority on the said officer as a
persona designata.

(5)      Where a judicial officer who presides over a Court is appointed to perform a
function under any statute and he is intended by the statute to act not otherwise
than in ajudicial capacity, in the absence of any other indication to the contrary,
he cannot come within the expression "persona designata" and he acts as a
Court only.

(6)      When ajudicial authority like an officer who presides over a court, is appointed
to perform a function, that is to judge and decide in accordance with land and
nothing has been mentioned about the finality or otherwise of the decisions
made by that authority, it is an indication that the authority is to act as a Court
in which case only it is not necessary to mention whether they are final or not
as all the incidents of exercisingjurisdiction as a Court would necessarily follow.

(7)      Whether the authority functions as a persona designata or as a Court does not
necessarily depend on the question whether it is acting against the decisions
of designated persons or Tribunals or not. Statutes are full of instances where
appeals or revisions to Courts are provided even as against the decision of the
designated persons and tribunals."

In S. SriniuosaRaous. HighCourtofA.P. 1988 (2) ALT 586, it was held that the Appellate authority under the A.P. BUILDINGS (LEASE, RENT AND EVICTION) CONTROL ACT, is not apersonadesignataand hence the appeals could be transferred to the Additional Chief Justice of the Small Causes Court.

(3) (i) Under the Act, the Special Court discharges judicial functions, may the same functions as in the Civil Court discharges for Trial of cases involving determination of question of title and ownership or lawful possession, (ii) The procedure prescribed under the Code of Civil Procedure applies to the

proceedings before the Special Court.

(iii) The Special Court has also the power to pass interim orders like a Civil Court. It was held there is no doubt that the District Judge while acting as Special Court does not act as a "persona designata" but merely acts as a Presiding Officer of the District Court. It follows that the District Judge has power to assign work to Additional District Judge.

II. The Second question whether the order of eviction passed by the Additional District Judge is executable as the alleged encroachers are not parties to proceedings ? The High Court observed that there was no such plea in the Counter filed by the Society or the office bearers. The individuals who encroached and remained on the land are not constant but variables. They change from time to time. So, it is very difficult for any person or authority to implead them eo nominees. It is for this reason Sec. 8(6) of the Act provides that the findings of the Special Court with regard to the land grabbing shall be binding on all persons having interest in such lands "whether or not, such persons are parties before the Special Court".

The President and Secretary of the Society were instrumental in grabbing the lands. Therefore, the judgement is binding on all those who have occupied the land. The contention that the judgement is not executable against those who are in possession of the land grabbed is untenable.

Sec. 2(d) It was held that the proposed parties, who are purchasers from the alleged land grabbers, come within the meaning of 'Land Grabber' as defined by Sec. 2(d) of the Act as they are successors-in-interest. The Corporation should have treated them as persons interested in the land and consequently impleaded them as respondents in the Land Grabbing Court. B.Lalitha Devi vs. Special Court, Land Grabbing (Prohibition) Act, Hyderabad and others, 1993 (1) ALT 204.

Sec. 2 (e) In T.Sugunammaandothers vs. StateofA.P. and others W.P. No. 7912 of 1989 etc. 1994 (2) APLJ 37 (S.N.), the Civil Court declared the Vendors as owners of the land and when the Appeal was pending before the High Court, the purchase was effected. The purchase, being bonafide and for consideration at a time when the title of their Vendors was declared by the Civil Court, does not amount to Land grabbing and the possessors are not land grabbers.

Section 2 (j) - Unauthorised structures are those that are constructed or put up without permission from Municipal Corporations, Municipalities and Gram Panchayats under the relevant Statutory provisions and Rules. The definition goes a step further and declares that any structure or portion thereof constructed or put up in violation of any law for the time being in force is unauthorised. It means that any structure or portion thereof, which is in violation of Building Rules under the relevant statutes, are unauthorised. The word 'structure' has a very broad meaning. The Law Lexicon of British India by P. Ramanatha lyyer gives the meaning of the word as follows : that which is built or constructed ; an edifice or a building of any kind ; in the widest sense, any production or piece of work, artificial built up or composed of parts and joined together in some definite manner ; any construction.

In its broadest sense a "structure" is a production or piece of work artificial by built up or composed of parts joined together in some definite manner, and in such sense a fence is a structure'.

It may be stated that every building is a structure though every structure is not a building and the word structure can be applied to wall or a shed or any other unsubstantial erection for which the word building cannot be used (73 I C 911 = A.I.R. 1924 Lah. 172].

Sees. 2 (i), 7 and 8 (8) - Application filed before District Judge for transmission of record in a civil suit filed in 1974 before Sub-Court to Special Court under the Act. District Judge has jurisdiction to direct transmission of record to his Court. B. Raghavaratnam & others vs. State of A.P., 1987 (1) ALT 771 = 1987 (1) L.S. 232.

Sees. 2 (d) and (e), 7 and 8(1) and (7) - Special Court constituted under the Act has jurisdiction to try cases where land has already been grabbed and also cases of grabbing activities already initiated and continued. Jurisdiction includes past and present transactions of grabbing and also activities in the process of grabbing. Anil Reddy us. Mir Ahmed Alt Khan, 1990 (1) ALT 40 (NRC) = 1990 (1) An.W.R. 717.

Section 2(d) - Purchasers of land which is subject matter of Land Grabbing case from original owners (alleged Land Grabbers) also come within the definition of'Land Grabber' being the successors-in-interest. Smt. B. LalitaDevi and others vs. The Special Court under A.P. Land Grabbing (Prohibition) Act, Hyderabad and others, 1993 (1) ALT 204 = 1993 (1) An.W.R. 49.

Section 2 Clauses (e) and (cc) and Section 8(1-A) - 'Land grabbing' - 'Land belonging to a private person' - Meaning of - Jurisdiction of Special'Court under the Act. Grabbing of land belonging to a private person also falls within the jurisdiction of Special Court if its value and extent is substantial. K. Krishna and others vs. Special Court under the A.P. Land Grabbing (Prohibition) Act, Hyderabad and others: 1995(1) An.W.R. 451 (D.B.)=1995 (1) APLJ 70.

Section 2(d) - 'Land Grabber" defined - Section 2(e) - 'Land Grabbing' defined (i) The Petitioners could not have been treated as Land Grabbers ? Dantuluri Vijaya Lakshmi and others vs. Special Court under the A.P.Land Grabbing (Prohibition) Act, Hyderabad and another, 1996 (2) An.W.R. 65 (D.B.).

Sections 2(e) and 8(8) - Land Grabbing - Suit for permanent injunction - In application filed for temporary injunction, petitioners-plaintiffs prima facie found to be not in possession of suit land and therefore not entitled to injunction. Having obtained adverse order, they cannot contend that civil Court had no jurisdiction to go into question of possession and that case has to be transferred to Special Court under the Act. In on sr to bring the case within the ambit of the Act, it has to be established that possession of the land is sought to be disturbed by alleged land grabber who has no lawful entitlement to disputed land. Once prima facie a finding is given at interlocutory stage as to possession, that finding cannot be disturbed. Question of jurisdiction has to be decided only after full trial. No grounds for transfer of the case at this stage. In the circumstances of the case, dismissal of memo filed for transfer of the case to Special Court upheld. Nawab Mohammed Kabiruddin Khan, Hyderabad and another vs. M. Krishna Rao, Hyderabad and others: 1996 (4) ALT 328 .

Sections 2(e) and 10 - Offence of Land Grabbing - Burden of proof - Offence consists of occupying a land by a person without any lawful entitlement. Once a person who

approaches Tribunal prima facie proves that he is the land owner, presumption is that offender is the land grabber. Burden then shifts to offender to prove that he has not grabbed the land and that he is the owner of the said land. Mental condition (mens rea) of the offender in possession of land belonging to others not relevant to prove the offence. Document produced by respondents prima facie proves them to be owners of land in question. Documents produced by petitioners to prove their ownership relate to the date subsequent to institution of O.P. by respondents. What is required is their title to property on the date of institution of O.P. which they could not show. Orders of Special Tribual and Special Court holding the petitioners as Land Grabbers . Sustainable. K. Narsing and others vs. Special Court under A.P. Land Grabbing (Prohibition) Act, Hyderabad and others: 1996 (2) ALT 884 (D.B.) = 1996 (2) APLJ 428.

Sections 2(e) and 10 - Offence of land grabbing - Mens rea - Proof of mens rea does not arise to establish the offence of land grabbing. Doctrine of mens rea is implied in every offence unless it is excluded by statute expressly or by necessary implication. Mens rea is excluded by statute in the case of offence of land grabbing. Mental condition of person in possession of land of others therefore not relevant to prove the offence. K.Narsing and others vs. The Special Court under A.P. Land Grabbing (Prohibition) Act, Hyderabad and others, 1996 (2) ALT 884 (D.B.) = 1996 (2) APLJ 428.

Sections 2(e), 8 and 15 and A.P. Slum Improvement (Acquisition of Land) Act, 1956, Section 3(1) and (2) - Land Grabbing - Once a valid right or title is created under an Act in favour of certain persons to occupy a land they cannot be declared as land grabbers by Special Court or Tribunal. Section 15 does not confer any power on Special Court to declare such persons as Land Grabbers. Special Court cannot go into legality and validity of the notification issued under the Act creating such right. High Court cannot go into that question as\it involves questions of fact. Aggrieved party can raise that question before appropriate forum. J.V. Sarma and others vs. Special Court under A.P. Land Grabbing (Prohibition) Act and others, 1997 (3) ALT 666 (D.B.) .

Section 2(d) - Tenants of land continuing in possession after termination of tenancy - Not land grabbers but only tenants holding over. Special Court constituted under the Act not having jurisdiction to entertain a petition against them for eviction. The remedy of landlords is only to file a suit for eviction against them as tenants holding over in a civil Court within period of limitation. When persons enter into the land legally in the first instance, they would not be land grabbers if they continue in possession after termination of tenancy. Even if initial entry is Illegal, the person in possession would not be land grabber if a lease is granted in his favour and if he continues in possession after termination of lease. Jurisdiction of Court be decided by reading the pleadings of the applicant and not the defence of other side. Petitioners pleaded in their application that respondents were tenants of land. Order of Special Court holding that it has no jurisdiction to entertain the application filed before it to declare respondents as land grabbers -Upheld. Pithana Nanda Kumar and others vs. Kostu Eswara Rao and others; 1999 (6) ALT 493 (D.B.I

3. Land grabbing to be unlawful:—

Land grabbing in any form is hereby declared unlawful; and any activity connected with or arising out of land grabbing shall be an offence punishable under this Act.

NOTES

While land grabbing' is declared to be unlawful, any activity (i) connected with to (ii) arising out of land grabbing is also punishable under the Act. The definition of the basic or primary offence namely, land grabbing is given in Sec. 2(e) of the Act. In the definition, we find that land grabbing' can be committed in many ways and for an analysis the notes under Sec. 2 (e) may be referred to Sec. 3 also envisages various forms in which the offence of land grabbing may be committed. The legislature has exhaustively given in Sec. 2 (e) a' variety of forms in which land grabbing could be committed. Yet, Sec 3 extends the definition by including any activity connected with or arising out of land grabbing. By such

wider connotation, a real estate broker putting through a sale or lease may be guilty of an act connected with land grabbing.

The next question is, does Sec. 3 separately declare the consequences in Civil and Criminal law by use of different words 'unlawful' and 'punishable' ? If so does the extended definition applies to only the consequence of punishment, in other words does it apply to only Criminal liability and not Civil liability ?

4. Prohibition of land grabbing:—

(1)             No person shall commit or cause to be committed land grabbing.

(2)             Any person who, on or after the commencement of this Act,
continues to be in occupation, otherwise than as a lawful tenant,
of a grabbed land belonging to the Government, local authority,
religious or charitable institution or endowment including a
wakf, or other private person, shall be guilty of an offence under
this Act.

(3)             Whoever contravenes the provisions of sub-section (1) or sub­
section (2) shall on conviction, be punished with imprisonment
for a term which shall not be less than six months but which may
extend to five years, and with fine which may extend to five
thousand rupees.

CASE LAW

An 'Abettor" or one who causes the commission of the offence of land grabbing' is as much liable and punishable as the Principal Offender would be punished.

Though seemingly prospective by the employment of the words "on or after the commencement of this Act", it must be noted that continuing in occupation of the grabbed land before the commencement the Act, is an offence. Where a person grabbed the land and transferred it to another before the commencement of the Act, will the transferee in occupation be guilty, especially when he has no guilty mind or that kind of mens rea required in the definition of the offence of land grabbing? a plain reading of Sec. 4 (2) indicates that a mere occupier, not being a lawful tenant, of the land without the taint of land grabbing, will also be punishable' No mens rea need be present in such occupier. This legal position leads to the question of Criminal liability without mens rea or guilty mind.

The maxim Actus non facit reum nisi mens sit rea (act does not become guilty unless mind is guilty), is applied to English Common Law Offences. But there was a lot of judicial debate regarding the application of the maxim to the offences defined by legislation. It is well settled that the legislature in defining an offence, has authority to rule out the requirement of guilty mind, either expressly or by necessary implication. If the legislature has not expressly ruled out mens rea, it is for the Courts to interpret the legislation and decide on the intention of the legislature to apply the maxim or rule it our. We have to look to judicial pronouncements for tests and guidelines.

That being the position at Common Law, the relevance of mens rea or blameworthy state of mind in statutory offences was a matter judicially discussed. The question is whether there is presumption regarding the requirement of mens rea in statutory offences or not. The judicial opinion swung to the extremes.

In R vs. Prince, (1875) LR 2 CCR 154, Prince was charged with the offence of taking away a girl under the age of sixteen from out of the possession and against the will of person having lawful care of her. The accused pleaded that the girl's appearance and her own assertions that she was above sixteen years of age was held to be not a varied defence. The accused was convicted of the offence. The opposite principle was laid R vs. Hibbert (1869) LR 1 CCR 184.

InR vs. Wheat and Stocks, (1921) 2KB 119, Wheat was charged with having married Stocks, when his wife was alive. Stocks was charged with abetting the commission of offence. Wheat was an illiterate and when some papers were sent to him by his Solicitors for his signature, he believed that he was divorced. It was held that a mere belief that a divorce has been obtained, when in fact it was not obtained is no answer to an indictment of Bigamy.

In R vs. Tolson, (1889) 23 QBD 168, the prisoner's husband deserted her a little after one year. The prisoner made equiry and learnt from the brother of the husband and from general report that her husband had been lost in a vessel bound for America which went down with all hands of board After 6 years and 11 months the prisoner supposing herself to be a widow. Went through the ceremony of marriage, which was not concealed. On the return of the husband from America, the prisonerwas charged with the commission of the offence of Bigamy. She was held not guilty.

In Cundy vs. Lecocqu, (1884) 13 QBD 207, the accused was charged of supplying liquor to a person who was already drunk and such supply was an offence under the Licencing Act, 1870. The defence that the accused did not know that the purchaser was drunk, was not accepted and mens rea was not found to be an ingredient of the offence. The reasoning was that a little care on the part of the vendor would have been possible to find out that the person was drunk.

In Sherrez vs. De Rutzen, (1895) 1 QB 918, the accused was charged with thesupplying of liquor to a constable on duty, which was prohibited by Licensing Act. The defence was that the vendor had no knowledge that the constable was on duty. The accused was found to be not guilty, as there was no mens rea. The reasoning was that any amount of care on the part-of the vendor would not enable him to find out whether the constable was on duty or not, especially when constable is said to be on duty when he wears a badge of a scarf.

In Hobbs vs. Winchester Corporation (1910) 2 KB 471 at 483, it was observed "there is a clear balance of authority that in construing a modern statute this presumption as to mens rea does not exist". But in lim chin Alk vs R, (1963) AC 160, after full discussion on the question it was observed that the presumption as the mens rea is still a strong one and will only be displaced, if certain conditions are fulfilled. In this case, under the Singapore Immigration Ordinance of 1959, the accused could not be entering and remaining in Singapore, it was held that when that was not brought to this attention, he cannot be held to be guilty of the offence.

In MaRon vs. Allan, (1964) 1 QB 385, it was held that under the Betting and Gaming Act of 1960 a person cannot be held to be guilty without some knowledge that a person apparently under the age of 18 years was on the premises.

InBrendvs. vs. Wood, (1946) 175 LT 306, Lord Goddard, C.J. observed: "unless this Statute, either clearly or by necessary implications, rules out mena rea as a constituent part of a crime a defendant should not be found guilty of an offence under the criminal law unless he has got a guilty mind".

The opinion of Lord Goddard, C.J., in Harding vs. Price (1948) 1 K.B. 695 at 701 throws light on the interpretation of the definition of such Statutory Officences. "If the statue contains an absolute prohibition against the doing of some Act, as general Rule mens rea is not a constituent of the offence, but there is all the difference between the prohibiting an Act and imposing a duty to do something on the happening of certain event."

In Younghusband vs. Lufting, (1949) 2 K.B. 354, his Lordship observed that it was desirable to emphasise that nagative mens rea in cases should be regarded as an exception to the Rule that a person cannot be convicted of a crime unless it is shown not only that he has committed a forbidden act or default but also a wrongful intention or blameworthy condition of mind can be imputed to him.

The Courts have prescribed the guidelines to find out whether mens rea is a constituent of the offence or not.

(1)      The language of the Statute Is to be examined.

(2)      The spoken object of the enactment as well as the intention of the legislature
is to be found to see the relevance of mens rea.

(3)      The public duty that is cast under the Statute is to be seen with reference to its
seriousness.

(4)      Offence in the nature of mere torts against the State in which no moral turpitude
is attached, mens rea may be considered irrelevant. But in the more serious or
grave statutory offence, mens rea should be regarded as relevant.

In Harish Chandra vs. Emperor AIR 1945 All. 90, the accused was charged with the offence of selling Malmal cloth at a price higher than prescribed under the Cotton Cloth and Yarn (Control) Order of 1943. The defence was that he was away from the town as he had to attend a marriage. Hence he had no knowledge of such sale and such sale was against his instructions. Malik, J observed that no one who is an agent for a legal purpose can make the principal responsible for an illegal act, unless the principal has in some way, directly or indirectly, authorised it. The condition of the mind of the servant is not to be imputed to the master. It is a general principle of criminal law that there must be some blameworthy condition of mind or mens rea. It is in the power of legislature, if it so pleases to enact that a man may be convicted and punished although there was no blameworthy condition of mind. But this exception would have to be made out convincingly from the language of the Statutes as it cannot be lightly presumed that the Legislature intended that the principal should be punished for the fault of the agent. His Lordship also indicated the guideline for interpretation. It is to be noted that in many cases the provision of the Statute would be rendered nugatory, if it be held that the prohibition or the duty imposed was not absolute. For guidelines interpretation and discussion of case law see Uttamchand vs. Emperor MR 1945 Lah. 238 (F.B.).

In Srinivas Mat! us Emperor AIR 1947P.C. 135, the first accused was a wholesale dealer and was licensed to distribute salt at controlled rate. He entrusted the business to his clerk, the second accused but sold the salt in excess of the controlled rate. Both were charged under the Defence of India Rules. The Patna High Court on a question of fact held that the first accused has also had actual knowledge of such sale for higher price and convicted both the accused. The Patna High Court expressed an opinion that even if the first accused had no knowledge, he would be vicariously liable. On appeal, the Privy Council disagreed on the point of vicarious liability expressed by the Patna High Court. The Privy Council pointed out that in a serious offence involving three years imprisonment, vicarious liability cannot arise following the principles laid down in Sheray vs. De Rutzen (supra, and Brend us.Wood (supra).

It may be noted that the defence available under Chapter IV general Exception of the Indian Penal Code are available and those provisions are applicable to offences under a special or local law. A.I.R. 1951 Orissa. 284 (288). But justification by mistake of fact found in Sec. 79 of the I.P.C. was held to be not applicable to an offence under Forest Act. In reK.R. Lewis AIR 1914 Mad. 277.

The failure to furnish a statement under Sec. 41 (1) of the Wakf Act must be wilful to render it an offence. Though the word 'wilful' is not used in the section such intent was held to be necessary to hold the accused guilty. Madras State Wakf Board vs. Taj Mul, AIR 1968 Mad. 332.

When a person is charged of an offence under Essential Commodities Act, 1955 mens rea is a constituent. Subba Rao, J., as he then was, observed "mens rea is an essential ingredient of a criminal offence. Doubtless a Statue may exclude the element of mensrea" "Mens rea by necessary implications may be excluded from a Statute only where it is absolutely clear that the implementation of the object of the Statute would otherwise be defeated. The nature of the mens rea that would be implied in a Statute creating an offence

depends on the object of the Act and the provisions thereof         ". It was held that it could

not have been the intention of the Legislature to impose heavy penalties like imprisonment for a period up to three years, the contravention must have to be intended to be intentional. Nathulal vs. State ofM.P., AIR 1966 S.C. 43.

An innocent master cannot be held to be criminally liable for the act of his servant under Motors Spirit Rationing Order, 1941. Hariprasad Rao vs. The State AIR 1951 S.C. 204.

The phrase "Falsely represents" occurring in Section 10 of the Central Sales Tax Act, can be considered in a wider or narrower sense. When the offence is punishable with imprisonment which may extend to six months, the element of intention is necessary. It was held that there was nothing in the Section to show to punish a dealer who honestly though incorrectly represented that a particular article fell within the description of goods specified in the certificate. S.T. Commissioner us. Bombay General Stores, A.I.R. 1969 M.P. 213 (D.B.)

When an employer honestly believed that he was not contravening any of the provisions of the Factories Act, when he employed casual labour over time in emergencies and maintained in the usual course of business, an Overtime Register and contended that he has not committed any offence intentionally or knowingly, the prosecution does not lie. In re Lakshmiah Naidu, AIR 1959 A.P. 536.

Offences under the Control Orders passed under the Defence of India Rules are not offences of a comparatively minor character in respect of which the existence of mens rea could be ruled out as not being an integral part of the crime. Ramachandra Gupta in re 1957 (1) An.W.R. 279.

The prosecution must establish mens rea under the Essential Supplies {Temporary Powers) Act, 1946. Sathyanarayana vs. State of Andhra, 1956 An. WR 398.

To determine whether the liability is absolute, regard must be had to the object of the Statue, the words used the nature of the duty, the person upon whom it was imposed, the person by whom it would in ordinary cases be performed and the person upon whom the penalty is imposed, In re Manu Iyer, AIR 1954 Mad. 485.

In a case arising under the Foreign Exchange Regulation Act, 1947, it was observed that the very object and purpose of the Act and its effectiveness as an instrument for the prevention of smuggling would be entirely frustrated if the condition were to be read into the provisions of the Act, qualifying the plain words of the enactment, that the accused should be proved to have knowledge that he was contravening the law before he could be held to be guilty. State of Maharastra vs. George, AIR 1956 S.C. 722 at 740.

Under Madras Cloth Dealers Control Order 1948; the object being to prevent black marketing, the failure to issue correct cash receipt or a credit note is an absolute liability. In re Panchapakesa Iyer, AIR 1954 Mad. 396.

(1) Acts which are not criminal in any real sense but acts which in the public interest are prohibited (2) public nuisance and (3) cases, though criminal in form, are really, summary mode of enforcing a civil right, create obsolute liability. Except in those cases, there must be in general guilty knowledge on the part of the defendant.

The offence under Sec. 35(1) of the Bombay Public Trust Act prescribes only a fine and does not carry with it stigma and hence the liability was held to be absolute. State of Gujarat vs. Pande, AIR 1971 S.C. 866.

Section 4(3) prescribed the minimum and maximum terms of imprisonment On conviction, the sentence of imprisonment and fine shall be pronounced.

Sections 4 and 5 - Land grabbers - Punishment - Before holding any persons as land grabbers and ordering punishment, Court has to see whether it is established that there is any attempt by such persons to take possession of land illegally and whether they are continuing in occupation of said land otherwise than as a lawful tenant. UppariMuthamma and others vs. Special Tribunal, under A.P. Land Grabbing (Prohibition) Act, Hyderabad and others, 1997 (6) ALT 481 (D.B.).

5. Penalty for other offences in connection with land grabbing:—

Whoever, with a view to grabbing land in contravention of the provisions of this Act or in connection with any such land grabbing-

(a)             sells or allots, or offers or advertises for sale or allotment, or has
in his possession for the purpose of sale or allotment any land
grabbed;

(b)            instigates or incites any person to commit land grabbing;

(c)             uses any land grabbed or causes or permits knowingly to be used
for purposes, connected with sale or allotment; or

(d)            causes or procures or attempts to procure any person to do any
of the above mentioned acts, shall on conviction, be punished
with imprisonment for a term which shall not be less than six
months but which may extend to five years and with fine which
may extend to five thousand rupees.

NOTES

Sec. 5(a) : If any land grabbed is—

(a)        offered for (i) sale or (11) allotment;

(b)         advertised for (i) sale or (ii) allotment;

(c)          sold or allotted;

(d) possessed for the purpose of (i) sale or (ii) allotment the offence of land
grabbing' is committed. It may be noted that by the use of phrase 'with a view
to', element of mens rea is introduced.

Section 5 (b) The ground covered by Sec. 5 (b) is also covered by Sec. 4(1). Under Section 4 (1) causing to commit land grabbing is an offence. Under Sec. 5 (b) instigating and inciting to commit land grabbing is an offence. Instigating and inciting to commit land grabbing is causing to commit land grabbing. Thus both provisions deal with the same offence. Frotunately, the punishment prescribed are the same for the offences defined under both the provisions.

Section 5 (c) Use of the grabbed land or cuasing it to be used for purpose connected with (i) sale or (ii) allotment is an offence. It may be noted that 'use and occupation' (probably of unauthorised structures only) is land grabbing' as defined by Sec. 2 (e) of the Act. Causing land grabbing is an offence under Sec. 4 (1) as well as Sec. 5 (b). What appears to distinguish Sec. 5 (c) from other provisions is the purpose for which land grabbing is committed. The purpose is not the actual transactions of sale or allotment, but anything connected with sale or allotment.

Section 5 (d) (1) Causing (2) Procuring (3) Attempting to procure any person to commit offences defined in Sec. 5 (a), (b) and (c) amounts to an offence. As we have seen, causing (abetting) to commit land grabbing is an offence, both under Sec. 4( 1) and Sec. 5 (b) of the Act. The additional activities prohibited under Sec. 5 (d) are, procuring or attempting to procure any person to do any of the acts described in Sec. 5 (a), (b) and (c). This procuring or even attempting to procure a person in order to do the acts detailed in Sec. 5 (a), (b) and (c) is in itself an offence, though actual grabbing is not committed or even attempted.

One important feature that is seen from a reading of Sees. 4 and 5 is that many cases of land grabbing may come within the teeth of more than one provision of the Act. The definition of offences in various provisions overlap. In the actual working, they may not bring in serious problems, in as much as the punishment prescribed does not vary.

6. Offences by companies:—

(1) If the person committing an offence under this Act is a company, the company as well as every person in charge of, and responsible to the company for the conduct of its business at the time of commission of the offence shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly;

Provided that nothing in this sub-section- shall render any such person liable to any punishment if he proves that the offence was committed without his knowledge or that he exercised all due diligence to prevent the commission of the such offence.

(2) Notwithstanding anything in sub-section (1), where any offence under this Act, has been committed by a company and it is proved that the offence has been committed with the consent or connivance of, or that the commission of the offence is attributable to any neglect on the part of any director, manager, secretary or other officer of the company, such director, manager, secretary or other officer shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly. Explanation:— For the purposes of this section:—

(a)             "company" means any body corporate and includes firm or
other association of individuals; and

(b)            "director" in relation to a firm, means a partner in the firm.

CASE LAW

Section 6 (1) When a company commits an offence udner the Act (1) the company as well as every person (2) (i) incharge of and (ii) responsible to such acts shall be deemed to be guilty of the offence and punished.

This sub-section intends to do away with the problem oflocating mens rea and attributing actus reas to a Company, which is a juridical person, without any physical existence. Difficulty was left, some time ago, as to how to attribute a mind to a juridical person. It is now well settled that the mind of the Directors, as expressed by their resolutions, is the expression of the mind of the Company or firm or Association of persons. The word 'deemed' indicates that there shall be a legal fiction and an inference from the circumstance that such of those persons incharge of and responsible for the activity of the Company be guilty of the offence. The Proviso to Sec. 6(1) seeks to protect innocent Directors, Partners or Officers inchagrge of the activity of the Company, who have not played any role in theoffence of land grabbing. There might also, be cases, where a praticular Director dissented from acting or authorising the activity of the land grabbing in a meeting of the Directors and such an innocent Director shall not be punished. It is open to such Director, Partner or Officer to set up the defence (1) that he had knowledge of the activity or authorisation of the activity of the land grabbing (2) that he exercised all due dilligence to prevent the commission of such an offence.

Section 6(2) - sub-section 2 seeks to punish any Directory, Manager, Secretary or other officer of the company, when land grabbing was committed by a Company (1) with their consent or connivance or (2) the acts are attributable to any neglect on the part of such persons. In so far as the acts done with the consent or connivance of the named Officers, we have seen that abetting is an offence under Sec. 4 (1) and Sec. 5 (a) of the Act. This sub­section reiterates the same position with reference to the named officers of a Company, which includes a partnership firm and association of individuals as defined by Sec. 6 (2) (a) of the Act. This provision is intended to specifically cover the named officers of a Company, Partnership firm or Association of individuals.

The second part of Sec. 6 (2) is highly burdensome on the part of citizen, in as much as, even negelect is sought to ber punished. If the offence of land grabbing is commited due to the neglect on the part of any of the named officer, then such officer is liable to be punished for the offence. As we have seen the offence is punishable with imprisonment for a term, which shall not be less than six months but which may extend to five years and with a fine which may extend to Rs. 5, OOO/-.

The punishment prescribed clearly indicates that the offence is very grave and on conviction both the sentence of imprisonment and that of fine shall be imposed. If such a grave offence is said to be committed on simple neglect onthe part of the named officer may lead to serious social consequences and it may be a terrible terror to those officers.

For example, if a Manager of a Company, which owns lands adjacent to a Government 'Poramboke' land, erects a compound wall under his supervision and in such erection, the Manager is found to have negligently enclosed and encroached upon 2 or 3 feet of the 'poramboke' land, even then the offence must be deemed to have been committed. If the Manager is negligent in not verfying the actual land which the Company owns, he will be found to have negligently encroached and enclosed th eGovernment 'poramboke' to the extent of 2 or 3 feet and found guilty of land grabbing. Did the legislature intend deterrent punishment of the personnel of Companies and not to punish individuals in the same manner.

The definition of 'Company' and 'Directors' has enlarged the meaning of the word Company, so as to include a Partnership firm, its partners and the Association of individuals. It would have been better that in the definition of the word 'Director', the office bearers of an Association of individuals is also included.

7. Constitution of Special Courts:—

(1)            The Government may, for the purpose of providing speedy
enquiry into any alleged act of land grabbing, and trial of cases
in respect of the ownership and title to, or lawful possession of,
the land grabbed, by notification, constitute : [a Special Court].

(2)            A Special Court shall consist of a Chairman and 2[four other
members,] to be appointed by the Government.

3[(3) The Chairman shall be a person who is or has been Judge of a High Court and of the other four members, two shall be persons who are District Judges (hereinafter referred to as Judicial Members) and the other two members shallbe persons who hold or have held a post not below the rank of a District Collector (hereinafter referred to as Revenue Members): Provided that the appointment of a person who was a Judge of a High Court as the Chairman of the Special Court shall be made after consultation with the Chief Justice of the High Court concerned;

Provided further that where a sitting Judge of a High Court is to be appointed as Chairman, such appointment shall be made after nomination by the Chief Justice of the High Court concerned, with the concurrence of the Chief Justice of India.]

(4) The Government from time to time likewise reconstitute : [the Special Court] constituted under sub-section (1) or may, at any time abolish such Special Court.

4(4A) The Chairman or other member shall hold office as such for a term of two years from the date on which he enters upon his office, or until the Special Court is reconstituted or abolished under sub-section (4), whichever is earlier.

(4B) (a) Subject to the other provisions of this Act, the jurisdiction, powers and authority of the Special Court may be exercised

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1.            Subs, by Act  16 of 1987 (w.e.f. 18-9-1986).

2.            Subs, by ibid.

3.            Subs, by Act 6 of 1988 (w.e.f. 19-1-1988).

4.            Sub-sections 4-A and 4-B inserted by ibid.

- - -

by benches thereof one comprising of the Chairman, a judicial member and a Revenue member and the other comprising of a Judicial Member and a Revenue Member.

(b)           Where the bench comprises of the Chairman, he shall be the
Presiding Officer of such a bench and where the bench consists
of two members, the Judicial member shall be the Presiding
Officer.

(c)            It shall be competent for the Chairman either suo motu or on a
reference made to him to withdraw any case pending before the
bench comprising of two members and dispose of the same or
to transfer any case from one bench to another bench in the
interest of justice.

(d)           Where it is reasonably apprehended that the trial of Civil liability
of a person accused of an offence under this Act, is likely to take
considerable time, it shall be competent for the Chairman to
entrust the trial of the criminal liability of such offender to
another bench in the interest of speedy disposal of the case.

(e)            Where a case under this Act is heard by a bench consisting of
two members and the members thereof are divided in opinion,
the case with their opinions shall be laid before another judicial
member or the Chairman and that member or Chairman, as the
case may be after such hearing as he thinks fit, shall deliver his
opinion and the decision or order shall follow that opinion".

'"(5) The quorum to constitute a meeting of any bench of the Special Court shall be two.

(5A) The Special Court may, by notification, make regulations not inconsistent with the provisions of this Act or the rules made thereunder relating to the procedure to be followed for the conduct of the cases and for regulating the manner of taking decisions.

(5B) The Special Court may cause a public notice of the substance of such regulations for the information of the general public.

(5C) Every regulation made under this section shall, immediately after it is made, be laid before the Legislative Assembly of the State if it is in session, and if it is not in session in the session immediately following for a total period of fourteen days which may be comprised in one session or in two successive'sessions and if before the expiration of the session in which it is so laid or the session immediately following the Legislative Assembly agrees in making any modifications in the regulation or in the annulment of the regulation, the regulation shall, from the date on which the modification or annulment is notified, have effect only in such modified form or shall stand annulled, as the case may be; so however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that regulation.

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1.   Subs, for original sub-sec. (5) as sub-sees. 5-A to 5-D by Act XVI of 1987 (w.e.f. 18-9-86).

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(5D) (i) Notwithstanding anything in the Code of Civil Procedure 1908, the Special Court may follow its own procedure which shall not be inconsistent with the principles of natural justice and fair play and subject to the other provisions of this Act and of any rules made thereunder while deciding the Civil liability, (ii) Notwithstanding anything contained in Section 260 or Section 262 of the Code of Criminal Procedure, 1973, every offence punishable under this Act shall be tried in a summary way and the provisions of Sections 263 to 265 (both inclusive) of the said Code shall, as far as may be, apply to such trial, (iii) When a person is convicted of an offence of land grabbing attended by criminal force or show of force or by criminal intimidation, and it appears to the Special Court that by such force or show offeree or intimidation the land of any person has been grabbed, the Special Court may if it thinks fit, order that possession of the same be restored to that person after evicting by force, if necessary, any other person who maybe in possession of the property."]

(6) No act or proceeding of ' [the Special Court] shall be deemed to be invalid by reason only of the existence of any vacancy among its members or any defect in the constitution or reconstitution thereof.

CASE LAW

Section 7(1)- Land Grabbing - Plea of adverse possession - Dismissal of land grabbing cases filed by State by Special Court accepting the plea of adverse possession raised by respondents. Challenged in writ petitions. Respondents by adducing evidence clearly established that they perfected their title to land in question belonging to Government by adverse possession. Respondents claim occupation of land for a continuous period of 30 years prior to filing land grabbing cases. Respondents admittedly in possession from 1962 i.e., for 26 years as deposed to by witnesses examined on behalf of State. Respondents assert their possession for the past about 60 years. Extracts of Faisal pattis produced by respondents for the years 1954-55 to 1960-61 showing the existence of cattle shed constructed by them on the land in question. No evidence on the side of Government to show that anybody else was in possession prior to 1962. An inference of continuity of possession of respondents for sixyears backwards from 1962 can therefore be safely drawn in the circumstances of the case. Respondents therefore held to have perfected their title to land in question by adverse possession and to have been in possession of the said land for the past more than 30 years by the date of filing of Land Grabbing cases. Respondents therefore not land grabbers within the meaning of Sec. 2 (d) and (e) of the Act -Order of Special Court upheld. State o/A.P. vs. G. Venkamma, 2002 (2) ALT 321 (D.B.).

Prima facie case - Special Court to form an opinion that there is some truth in the allegations in the case before entertaining the proceedings. Anand Prabat Co-op. Housing Society Ltd. vs. Spl Court under A.P.L.G. (Prohibition) Act, 2001 (1) ALT 609.

Sections 7, 7-A, and 8 - Powers and Procedure of Special Courts : Explained 'Land grab' not defined in the Act. Anand Prabat Co-op, Housing Society Ltd. vs. Spl. Court under A.P.L.G. (Prohibition) Act, 2001 (1) ALT 609.

Sees. 7 and 7A - Determination of public purpose - Grabbed land - Special Cout or Land Grabbing Tribunals not empowered to go into the question whether a particular land is required for public purpose or not in deciding whether a person is a land grabber or not. MandalRevenue Officer, Saroornagar Mandal, RR Dist. vs. Spl. Court under A.P. Land Grabbing (Prohibition) Act at Hyderabad, 2001 (4) ALT 687 = 2001 (2) LS 375 (DB).

Sees. 7, 7-A and 8 - Powers and Procedure of Special Courts : Explained 'Land Grab' not defined in the Act. Anand Prabat Co-op. Housing Society Ltd. vs. Special Court under A.P. Land Grabbing (Prohibition) Act, Hyderabad, 2001 (1) ALT 609 = 200 J ALT (Rev.) 1.

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1.  Subs, for the words "any Special Court" by Act XVI of 1987 (w.e.f. 16-9-86).

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Sections 7, 7-A and 8 - Constitution of two forums, Special Courts and Special Tribunals. Whether constitution of two forums with civil and criminal powers is violative of Art. 14 of the Constitution of India. Not conflicting and discriminative. A.P. Housing Board vs. Mohammed Sadatullah, 2000 (3) ALT 46 = 2000 ALT (Rev.) 339 (D.B.).

Sees. 7 and 8 - Constitutional Validity of - Challenged as discriminatory and arbitrary -Constitution of two Special Forums. Two forums constituted for expeditious settlement of Land Grabbing matters. Creation of two forums correct and lawful. Gusani Steels (Put.) Ltd. vs. ShanthaBai, 2000 (2) An.W.R. 84 (D.B.).

Special Court is to be constituted for trying cases under this Act. Courts are established in India under the provisions of Constitution of India, the Criminal Procedure Code and the Civil Courts Act of the States. In view of the expeditious trial and decision of particular class ofcases, in order to punish the worng doer and eradicate social evils. Special Courts are established. The constitutional validity of such establishment of Special Courts have been gone into by Courts. In State of West Bengal vs. Anwer Ali, AIR 1952 S.C. 75, The validity of the West Bengal Special Courts Act of 1950 was questioned. The Act provided for the establishment of the Special Courts and special procedure for those courts and restricted the power of those Special Court Courts to grant adgournment. It was contended that the accused before the Special Courts was put to disadvantage as compared with the accused tried by the ordinary Courts and thus there is a discrimination between parties before the two Courts. It was also contended that the Government shall not have uncontrolled power to refer any case to a Special Court and thereby violative of Art. 14 of the Constitution. It was held that tne vesting of uncontrolled discretion of the Executive Authority to refer certain cases to a Special Court would be violative of Art. 14 and hence the Act was held to be void. It may be noted that Pathanjali, C.J. dissented from this view,

In Kanthl Raning vs. State of Sourasthra, AIR 1952 S.C. 123 = 1952 S.C.J. 168. The establishment of Special Courts was in order to try and decide classes of offences and classes of cases, as the government may by general or speical order direct. It was held that the Ordinance under which the Special Court was established must be read with and in harmony of the preamble. When the Executive have a duty to classify the cases according to the objectives of the legislation, it cannot be said that it had un-regulated power. Reading the Ordinance as a whole the Executive had a duty to refer only cases affecting the tranquility, public order and so on, to the Special Courts and hence it cannot be said that the excutive had un-regulated choice. Hence the trail and Conviction by the Special Court was held to be valid. In Martganfaf Chaganlal vs. Municipal Corporation, AIR 1974 S.C. 2009 = (1974) 2 SCC, 402. The Bombay Government Premises (Eviction) Act, 1955, was contended to be violated of Art. 14. Under the provisions of that Act, the Municipal Corporation was empowered to evict unauthorised occupants of its premises without going to Court. It was contended that there are two Courts following two procedures to take cognizance of the complaint and decide. Under this Act speedy eviction under a different procedure was possible and at the same time there could be proceedings before the ordinary courts. One procedure is stringent, whereas the other is not. Hence it is contended that the Executive may arbitrarily refer certain cases to the Special Court and certain other cases to the ordinary courts and thereby violative of Art. 14 Alagiri Swamy, J, speaking for the majority considered that the Officers are expected to seek Special Courts, where speedy remedy is granted and not to resort to the dialatory procedure and delayed decision of ordinary courts. In that view, the Act was held to be valid. It may be noted that the Act itself does not take away the discretion of the Executive to seek only expeditious remedy before the Special Court and not arbitrarily resort to the ordinary courts in certain cases only. In that view, the minority view that the Act violated Art. 14 appears to be good. There was a proclamation of Emergency dt. 25th June, 1975 issued under clause (1) of Art. 352 of the Constitution. It was latter found that during the proclamation of the Emergency offences were committed by persons holding high public or political offices. Such Commission of offence were disclosed during enquiry underCommission of Inquiry Act, 1952. Whereas the ordinary criminal Courts due to congestion of work and other reasons, were not expected to speedily terminate the prosecution, Special Courts were found needy. Hence the Parliament enacted the Special Courts Act 22 of 1979.

In V.C. Shukla vs. State, AIR 1980 S.C. 962 it was held that the dominant purpose of the act is to be taken into account and the decision in AIR 1979 S. C. 478 was followed. It was further held that the non obstante clause would have an effect of overriding and excluding the provisions of the Code. The Courts should exclude the Statute concerned, in the instant case the Code, from consideration and should construe the words according to their natural and ordinary manner instead of referring to the Statute which is sought to be excluded.

In State (Delhi Administration.] us. V.C.Shukla, A.I.R. 1980 S^C. 1382, it was held that (1] the Parliament was fully competent to pass the Special Courts Bill (2) the classification made has responsable nexus with the object sought to be achieved, namely quick disposal and speedy trails and hence the^Act did not contravene the provisions of Art. 14. Further, it cannot be contended that the Act creates invidious distinction in as much as person holding public or political office would have the benefit of trial by experienced Judges of the rank of High Court, while the accused before the ordinary courts will haveto stand trial before only a Sessions Judge. On this ground Art. 14 Cannot be contended to have been violated. (3) By the automatic transfer of appeals from High Courts to the Supreme Court by legislative action, it cannot be said that the Legislature has usurped the functions of judiciary.

The Land Grabbing Act contemplates two Courts of first instance, (1) Special Courts and (2)Special Tribunals Special Courts are constituted under Sec. 7( 1) and its composition is dealt with under Sec. 7(2) and (3). The Special Court has power to try and decide questions of ownership, title and lawful poossession. The tenure of Office and power of reconstitution are dealt by Sec. 7(4-A). the working of the Special Court in divisions is dealt by Sec. 7(4-B). The allocation of work or transfer of cases can be made by the Chairman of the Special; Court, (i) either suo moto or (ii) on a reference, under Sec. 7 (4-B)(C).

By virtue of the A.P. Amendment Act 21 of 1988, two members, who shall be District Judges may be District Judges in service or retired as District Judges. !n confirmity with this the said Amending Act amended Clause (3) of the Notes on Clauses.

Under Sec. 7(4-B) (d), when the trial of civil case is likely to take some time, the Chairman is competent to entrust the trial of Criminal liability by another bench of the Special Court. The ordinary procedure contemplated is to decide the Civil and Criminal liability by a single trial. This Course will not result in conflicting findings of facts on(i) entitlement (ii) lawful possession and (iii) the kind of mental condition that is necessary in a case of land grabbing. But if there is a trial of the civil liability by one Bench and another trial of Criminal liability by another Bench, there is a possibility of conflicting findings on facts in issue. A provision governing such situation is welcome.

Section 7 (5A) to (5Q), deal with the framing of procedure to be followed in the conduct of cases. This procedure may come to be called Regulations. These regulations will be formed by the Special Court. In case of conflict among the members of theSpecial Court, in the matter of particular regulations, probably the procedure to be adopted in case of a division in deciding a case is to be followed. The regulations are to be (i) notified (ii) substance to be placed on notice board for information of general public (iii) the regulations shall be placed before the Legislative Assembly for a total period of 14 days. The Legislative Assembly may modify or annual any regulation and the said regulations shall have effect in such final form. All previous proceedings under Regulations upto the date of notification or annulment are saved.

In as much as the Special Court is given power to frame Regulations governing procedure before it the general law relating to procedure contained in Civil Procedure Code m sofar as Civil Cases and the Procedure contained in the code of Criminal Procedure in so for as the Criminal case, are made inapplicable to the trial before the Special Courts. Sec. 7 (5D) (i) and (ii) are non-obstante clauses expressly excluding the application of the C.P.C. and Code of Criminal Procedure. This was intended to avoid procedural complications and unnecessary delay by prolonging the trial. But these provisions are to be read with Sec. 9 of the Act, whereunder Code of Civil Procedure, Code of Criminal Procedure and A.P. Civil Courts Act shall apply, in so far as they are not inconsistent with the provisions of this Act.

Sec. 7 (5D) (iii) lays down that when land grabbing is attended by (1) Criminal force of (2) show of force or (3) Criminal intimidation, the Special Court may order restortion of possession of land grabbed by the convict. This remedy is also available under Code of Criminal Procedure. Sec. 456 of the Code gives power to the Magistrate to order restoration of possession of land obtained by the convict by criminal force and trespass.

Sees. 7(5-D)(i), 9, 15 and 17-B, Schedule, Clause 4 - Guidelines - Applicability of provisions of Order 1 Rule 10 and other provisions of Civil Procedure Code, 1908 - Special

Court under the Act has to follow principles of natural justice and fair play in deciding cases. Provisions of CPC not ipso facto applicable to proceedings before Special Court but Special Court may adopt those provisions as principles of natural justice. Interested person cannot claim as a matter of right to be impleaded as a party under Order 1 Rule 10, CPC though he may come on record on principles of natural justice. Municipal Corporation of Visakhapatnam vs. Smt B. Lalita Devi, 1995 (2) ALT 84 (D.B.).

Section 7(5-D) and Civil Procedure Code, 1908, Order 23 Rules 3 and 4 - Earlier case dismissed as withdrawn. Non-obtaining of permission of Special Court under Order 23 Rule 4, CPC not a bar for maintainability of subsequent case. Special Court can follow its own procedure consistent with principles of natural justice and fair play instead of following procedure in CPC. Tadi SuryaRao vs. Dr. GurubhavatulaRamakrishna Rao and another, 1996 (3) ALT 763 (D.B.) = 1996 (2) LS 378 = 1996 (2) APLJ 257.

Section 7(3) - Constitution of Special Court - Selection and appointment of Judicial Members and Revenue Members as Presiding Officers of Court be made only in consultation with Chief Justice of High Court even though there is no such provision either in the Act or the Rules. Direction given to State Government to obtain ex post facto consultation in respect of existing Members and decide their continuance or otherwise in the posts depending upon the opinion of Chief Justice to be received after assessing their qualifications, ability/suitability, etc. Government advised to provide in the Rules framed under the Act a provision for consultation of Chief Justice in regard to appointment of Judicial Members and Revenue Members to Special Court. Selection of Judicial Members and Revenue Members by Government without consulting Chief Justice. Unconstitutional and illegal. Government is restrained from making such appointments without consultation of Chief Justice. K. Mohan Lai and N. Venkatesh vs. State ofA.P. and others; 1997 (4) ALT 220 (D.B.).

Constitution of Special Courts dealing with land grabbing cases - It is within the legislative competence of the State Government. Appointment of members without providing for consultation with Chief Justice of the High Court concerned. Does not make Special Courts constituted under A.P. Act of 1982 unconstitutional especially when the appointment of Chairman is in consultation with/mmination by the Chief Justice of the High Court. Directions of the High Court for mandatory consultation with Chief Justice of High Court in case of appointment of members and to place existing appointments before it is improper and liable to be quashed. State of A.P. vs. K. Mohanlal; 1998 (3) ALT 24 (DN SC) = (1998) 5 SCC 468 = (1998) III MLJ 86 (SC).

1 [7-A. Special Tribunals and its powers, etc.:—

(1) Every Special Tribunal shall have power to try all cases not taken cognizance of by the Special Court relating to any alleged act of land grabbing, or with respect to the ownership and title to, or lawful possession of the land grabbed whether before or after the commencement of the Andhra Pradesh Land Grabbing (Prohibition) (Amendment) Act, 1987 and brought before it and pass such orders (including orders byway raf interim directions) as it deems fit: Provided that if, in the opinion of the Special Tribunal, any case

brought before it is primafacie frivolous, or vexatious it shal] reject the

same without any further enquiry:

Provided further that if in the opinion of the Special Tribunal any case

brought before it is a fit case to be tried by the Special Court it may for

reasons to be recorded by it transfer the case to the Special Court for its

decision in the matter.

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1.  New Section 7-A inserted by Act 16 of 1987 {w.e.f: 16-9-1986).

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(2)             Save as otherwise provided in this Act, a Special Tribunal shall,
in the trial of cases before it, follow the procedure prescribed in
the Code of Civil Procedure, 1908 (Central Act 5 of 1908).

(3)             An appeal shall lie, from any judgment or order not being
interlocutory order of the Special Tribunal, to the Special Court
on any question of law or of fact. Every appeal under this sub­
section shall be preferred within a period of sixty days from the
date of Judgment or order of the Special Tribunal;

Provided that the Special Court may entertain an appeal after the expiry of the said period of sixty days, if it is satisfied that the appellant had sufficient cause for not preferring the appeal within the period of sixty days.

(4)   Every finding of the Special Tribunal with regard to any alleged
act of land grabbing shall be conclusive proof of the fact of land
grabbing, and of the persons who committed such land grabbing
and every judgment of the Special Tribunal with regard to the
determination of the title and ownership to, or lawful possession
of, any land grabbed shall be binding on all persons having
interest in such land:

Provided that the Special Tribunal shall by notification specify the fact of taking cognizance of the case under this Act. Such notification shall state that any objection which may be received by the Special Tribunal from any person including the custodian of evacuee property within the period specified therein will be considered by it:

Provided further that where the custodian of evacuee property objects to the Special Tribunal taking cognizance of the case, the Special Tribunal shall not proceed further with the case in regard to such property:

Provided also that the Special Tribunal shall cause a notice of taking cognizance of the case under the Act served on any person known or believed to be interested in the land, after a summary enquiry to satisfy itself about the persons likely to be interested in the land.

(5)   It shall be lawful for the Special Tribunal to pass an order in any
case decided by it, awarding compensation in terms of money for
wrongful possession, which shall not be less than an amount
equivalent to the market value of the land grabbed as on the date
of the order and profits accrued from the land payable by the land
grabber to the owner of the grabbed land and may direct the
redelivery of the grabbed land to its rightful owner. The amount of
compensation and profits so awarded and cost of redelivery, if any,
shall be recovered as an arrear of land revenue if the Government
are the owner and as a decree of a Civil Court, in any other case:

Provided that the Special Tribunal shall, before passing an order under this sub-section, give to the land grabber an opportunity of making his

representation or of adducing evidence, if any, in this regard and consider every such representation and evidence.

(6)             Any case, pending before any Court or other authority immediately
before the commencement of the Andhra Pradesh Land Grabbing
(Prohibition) (Amendment) Act, 1987 as would have been within
the jurisdiction of a Special Tribunal, shall stand transferred to
the Special Tribunal, having jurisdiction, as if the cause of action
on which such suit or proceeding is based had arisen after such
commencement.

(7)             Every case brought before the Special Tribunal shall be disposed
of finally by the Special Tribunal, as far as possible, within a
period of six months from the date of its having been brought
before it.

(8)             The Special Tribunal shall have all the powers of a Civil Court for
purposes of review.]

CASE LAW

Sec. 7-A and Constitution of India, Art.226. Petition for issuance of a writ or direction declaring the action of the 1st respondent (Special Tribunal, District Judge) in entertaining the L.G.C. 36 of 1989 as illegal, without jurisdiction and contrary to the provisions of the A.P. Land Grabbing (Prohibition) Act. State ofA.P. vs. Spl. Tribunal, 2001 (1) ALT 479.

Sections 7-A and 8 - Land Grabbing - Transfer of suit to Special Tribunal - Suit filed by Government in civil Court for declaration of title and injunction or alternatively for possession of suit schedule lands on the ground that they are Government lands. Government also raising plea of acquisition of title by prescription. Government filing an application in the suit to transfer the suit to Special Tribunal constituted under the Act alleging land grabbing by defendants. In writ petitions filed earlier by purchasers of suit lands, High Court and Supreme Court directed the Government to establish its title in a regular suit. Nothing can be spelt out from plaint allegations as to any act of land grabbing or a case of illegal possession by defendants. Jurisdiction of civil Courts not ousted if serious questions of title are involved. Present suit is filed pursuant to directions of High Court and Apex Court. In the absence of any case of land grabbing, plaintiff-Government cannot invoke the provisions of the Act. In this case, there is not only a bona fide dispute of title but also a serious dispute of title. Court below transgressed its limits in ordering transfer of suit to Special Tribunal under the Act in spite of judgment of Supreme Court which is binding precedent under Article 141 of the Constitution of India. Provisions of the Act not attracted to the case. Civil Court has jurisdiction to entertain suit and decide the questions of title to suit property. Revision allowed and order of lower Court set aside. Dr. V. Rajeshwar Rao vs. State Gout, of Andhra Pradesh, 2001 (4) ALT 595.

Sees. 7-A (6), 8(8) and 2(d) and (e) and Civil Procedure Code, 1908, Order 7 Rule 11 (d) - Rejection of plaint - Application made by plaintiff for transfer of its suit to Special Tribunal under Sec. 7-A of the Act. Contention raised for respondent-defendant that on the allegations made, dispute is a title dispute, that the defendant do not come within the definition of land grabber and that it is not a case of land grabbing. When Act is not applicable, question of transfer of suit to Special Tribunal does not arise. Suit of such a nature does riot fall within the exclusie jurisdiction of Special Court or Special Tribunal under the Act. Further more, when relief is made in the application for transfer of suit, rejection of plaint on the ground that plaint itself is barred by provisions of the Act - Illegal and without jurisdiction. MaharqjahAlakhNarayana Society of Arts and Science {MANSAS) Fort, Vizianagaram vs. Ranjani Theatre, Vizianagaram; 2001 (5) ALT 737.

Sr.cs. 7 and 8 : Power and jurisdiction given to Special Tribunal and Special Court to deal with cases in which the cause of action or the acts contravening the provisions of the

act have arisen or done before the commencement of Act. This is said to be in unambiguous terms. Such retrospective operation given to the provisions of the act will give rise to certain questions to be answered.

(1)      and taking away the Civil rights.

(2)      In so far as tyhe Criminal liability is concerned, (a) it is not constitutionally valid
to enact law which holds a person criminally laible for acts done by him before
the Act.

Constitution of India, Art. 20 (1) reads :

"No person shall be convicted of any offence except for violation of a law in force at the time of the commission of the act charged as an offence, nor be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence".

Out of native princely state, the States of Vindhya Pradesh was formed. By an Ordinance, Indian Penal Code was to be applied restrospectively. A former minister was charged with receiving illegal gratification, under the provisions of the Indian Penal Code. It was held that retrospective penal laws were invalid. Shiva Bahadur vs. State of Vindhya Pradesh, AIR 1953 S.C. 394.

Though a soverign legislature has power to legislate retrospectively, creation of an offence for an act which at the time of commission was not an offence or imposition of penalty greater than that which was under the law provided, violates Art. 20 (1). G.P. Nayyer vs. State, AIR 1979 S.C. 602 = (1979) SCR 816.

Ex post facto; legislation regarding Crimes is made illegal, that it is not competent either to the Parliament or the legislature of a State to enact a law creating a crime for the first time and make the same retrospective.

Venkataraman vs. Commissioner of Police, AIR 1951 Mad 1015 = 1952 Cr.LJ 170.

(b) Retrospective legislation, which prescribes higher punishment for crimes
committed before enactment of such law, is within the teeth of Art. 20 (1) of the
constitution "A law which provides for a minimum sentence of fine on conviction
cannot be read as one which imposes greater penalty than that which might
have been inflicted under the law at the time of the Commission of the
offence       "

Satwant Singh vs. State of Punjab, 1960 S.C. 266 = 1960 2 SCR 89=1960 SCJ 863.

(c)  Procedural law of Criminal trial can have retropective operation. In Shiu
Bahadoor vs. State, AIR 1953 S.C. 394, it is laid down that no one has a vested
right in procedure and that Art. 20(1) of the constitution applies only to
substantive criminal legislation and not to criminal procedural law.

The Special Tribunal has power to pass interim directions under Sec. 7-A (1). The Special Tribunal can reject a complaint or a cause when they are prima facie frivolous or vexatious. Further the Special Tribunal may make a speaking order with reasons and transfer a case before it to a Special Court. The power of Special Court to withdraw cases from Special Tribunal is dealt by Sec. 8 (2-A) second proviso. Special Court's power to return cases for presentation before Special Tribunal is dealt by Sec. 8 (2-A). The Special Tribunal shall follow Code of Civil Procedure in the trial of cases before it. An appeal on its final judgment, not being interlocutory order, shall lie to the Special Court within a period of 60 days. There is no provision for neither appeal nor revision in case of interlocutory order of the Special Tribunal. The time taken for grant of copies may have to be excluded for good reason and in the interest of justice. Aregulation maybe introduced in this regard. An appeal filed beyond 60 days may be taken on file if theSpecial Court is satisfied that there was sufficient cause for the delay. The phrase "sufficient cause" is also found in Sec. 5 of the LimitationAct. Precedent under Section 5 of the Limitation Act may be usefully referred to. The judgment of the Special Tribunal on title, ownership, lawful possession of the grabbed land shall be binding not only on parties but also on all person have interest in such land. In order that the judgment may be binding on person other than the parties a notification shall be issued (1) specifying the taking cognizance of the case (2) inviting objections from any person and (3) specifying a period for filing objections. The Special Tribunal shall also cause such notice on any person known or believed it

to be interested in the land and hold a summary enquiry to find our such persons. Sec. 7-A (5D) provides that compensation for wrongful possession is awarded. The remedy of redelivery of the grabbed land may be directed. The execution of the order is by (1) recovery of compensation, as arrears of land revenue(2) in so far as other reliefs as a decree of Civil Court. If the execution of a decree granting reliefs other than compensation, were to be executed as a decree Civil Court then the reliefs contemplated under Sec. 51 of the Code of Civil Procedure can be sought.

Sec. 7-A (6) lays down that any case pending before any (1) Court or (2) other authority shall stand transferred to the Special Tribunal, if such a case could have been within its jurisdiction. This provision is sweeping in its terms. Any cases means all cases coming within the teeth of the A.P. Land Grabbing (Prohibition) Act, as amended in 1987. By virtue of this provision, when those cases before the courts or authority stood transferred to the Special Tribunal, the question arises that when in ignorance of this provision subsequent proceedings or trial conducted or judgment is pronounced by the ordinary courts or authority in those cases would they be invalid and without any jurisdiction whatsoever. The jurisdiction of Courts under the Act is exclusive, as could be seen from sees. 8(2) and 7-A. In Ragavmtnam vs. State of A.P. 1987 (1) ALT 771, it was held that the jurisdiction of Special Court is exclusive. For facts of the case and principle laid in the case, commentary under Sec. 8(8) may be referred to. When such a consequence is intended by the legislature, then it is absolutely necessary for the parties, Courts and authority to examine their files and make a physical transfer of those cases to Special Tribunal. If this is not done innumerable decisions without power or jurisdiction will be passed resulting inchaos.

Sec 7-A (7) is a recommendatory provision, suggesting disposal of cases within six months.

Sec. 7-A (8) - The Special Tribunal is conferred with the power of review akin to that of Civil Court. See Sec. 114 and Order XLVII of the C.P.C.

When the Special Court is not in existence, it can not be said that it has taken cognizance of any particular case and in the absense of such a Special Court, it is evident that the Special Tribunal will have the jurisdiction to try the case. Even during the functioning of the Special Court, the jurisdisction of the Special Tribunal under Sec.7-A of the act will be ousted only if the special Court has taken cognizance of a particular case. Srinivasulu vs. The Chairman for Tribunal. 1988 (2) ALT 786=1988 (2) APLJ 18

It is untenable to contend that the provisions of this Act override Sec. 7-A of the A.P. Land Encroachment Act. This Act was introduced for conferring powers for eviction of encroachers and for restoration of the land to Government. Bal Lingam vs. Collector, Rangareddy District, 1989 (1) APLJ (SN) 29.

As amended by Act 16 of 1987, Sees 7-A and 8 - Special Tribunal constituted under the Act has jurisdiction to try petitions under Sec. 8 , when Special Court is not constituted under the Act. Srinivasulu vs. Chairman for Tribunal under A.P. Land Grabbing (Prohibition) Act, Anantapur, 1988 (2) ALT 784=1988 (2) APLJ 19.

Sections 7-A and 8 - Suit filed in Civil Court for declaration and recovery of possession of certain land situated within Urban Agglomeration claiming its purchase under a registered sale deed. Defendants claiming the land as belonging to Government originally and now as belonging to HUDA. Issue relating to Land Grabbing arises out of pleadings. The said question is exclusively triable by Special Court under the Act. Civil Court's jurisdiction in respect of that suit is barred. Suit shall therefore stand transferred to Special Tribunal under Sec. 8(8). Land Grabbing Prohibition Act, though a State Act, overrides the provisions of C.P.C. Special Tribunal or Special Court alone has got jurisdiction if allegation of land grabbing is made. Govt. of A.P. and others vs. Sathaiah: 1993 (2) ALT 252 = 1993 (1) L.S. 377.

As amended by Act 6 of 1988, Sections 7-A(l) and 8(8) - Suit filed in civil Court for declaration of title and possession of suit land having purchased it from defendants 3 to 5. Government claiming it to be the Government land and filing a memo that it is a case of land grabbing and is triable only by Land Grabbing Tribunal and that civil Court has no jurisdiction to try the case. Held that case is exclusively triable by Special Court/

Tribunal and that civil Court's jurisdiction is barred and that case shall stand transferred to Special Tribunal. StateqfA.P. and another us. Sri C. Murali Mohan and others, 1997 (1) ALT 412 .

8. Procedure and powers of the Special Courts:—

(1) The Special Court may, either suo motu or on application made by any person, officer or authority take cognizance of and try every case arising out of any alleged act of land grabbing or with respect to the ownership and title to, or lawful possession of, the land grabbed, whether before or after the commencement of this Act, and pass such orders (including orders by way of interim directions) as it deems fit;

2[(1~A) The Special Court shall, for the purpose of taking cognizance of the case, consider the location, or extent or value of the land alleged to have been grabbed or of the substantial nature of the evil involved or in the interest of justice required or any other relevant matter:

Provided that the Special Court shall not take cognizance of any such case without hearing the petitioner.]

(2) Notwithstanding anything in the Code of Civil Procedure, 1908 3[the Code of Criminal Procedure, 1973] or in the Andhra Pradesh Civil Courts Act, 1972, (Act 9 of 1972) any case in respect of an alleged act of land grabbing or the determination of question of title and ownership to, or lawful possession of any land grabbed under this Act, 3 [shall, subject to the provisions of this Act, be triable in the Special Court] and the decision of Special Court shall be final.

4[(2-A) If the Special Court is of the opinion that any case brought

before it, is not a fit case to be taken cognizance of, it may

return the same for presentation before the Special Tribunal:

Provided that if, in the opinion of the Special Court, any application

filed before it is primafacie frivolous or vexatious, it shall reject the same

without any further enquiry:

Provided further that if on an application from an interested person to withdraw and try a case pending before any Special Tribunal the Special Court is of the opinion that it is a fit case to be withdrawn and tried by it, it may for reasons to be recorded in writing withdraw any such case from such Special Tribunal and shall deal with it as if the case was originally instituted before the Special Court.

(2-B) Notwithstanding anything in the Code of Criminal Procedure, 1973, it shall be lawful for the Special Court to try all offences punishable under this Act.

- - -

1.           Proviso omitted by Act 16 of 1987 (w.e.f. 18-9-1986).

3.     Subs, by ibid.

4.     Sub-sees. 2-A, 2-B and 2-C added by Act 16 of 1987 (w.e.f. 18-9-1986).

- - -

(2-C) The Special Court shall determine the order in which the civil and criminal liability against a land grabber be initiated. It shall be within the discretion of the Special Court whether or not to deliver its decision or order until both civil and criminal proceedings are completed. The evidence admitted during the criminal proceeding may be made use of while trying the civil liability. But additional evidence, if any, adduced in the civil proceedings shall not be considered by the Special Court while determining the criminal liability. Any person accused of land grabbing or the abetment thereof before the Special Court shall be a competent witness for the defence and may give evidence or oath in disproof of the charge made against him or any person charged together with him in the criminal proceeding:

Provided that he shall not be called as a witness except on his own request in writing or his failure to give evidence shall be made the subject of any comment by any of the parties or the special court or give rise to any presumption against himself or any person charged together with him at the same proceeding.]

(3)              '[*     *     *]

(4)              Every case under sub-section (1) shall be disposed of finally by
the Special Court, as far as possible, within a period of six
months from the date of institution of the case before it.

 :[

(5) (6)

Every finding of the Special Court with regard to any alleged act of land grabbing shall be conclusive proof of the fact of land grabbing and of the persons who committed such land grabbing, and every judgment of the Special Court with regard to the determination of title and ownership to, or lawful possession of, any land grabbed shall be binding on all persons having interest in such land 3[* * *]

4 [Provided that the Special Court shall, by notification specify the fact of taking cognizance of the case under this Act. Such notification shall state that any objection which may be received by the Special Court from any person including the custodian of evacuee property within the period specified therein will be considered by it;

Provided further that where the custodian of evacuee property

objects to the Special Court taking cognizance of the case, the Special

Court shall not proceed further with the case in regard to such property;

Provided also that the Special Court shall cause a notice of taking

cognizance of the case under the Act, served on any person known or

- - -

suo-sec. (3) omitted by Act 16 of 1987 (w.e.f. 18-9-1986).

Sub-sec. (5) omitted by ibid.

Sub-sec. (6) the words "whether or no t such persons are parties before the Special Court"

omitted by Act 16 of 1987 (w.e.f. 18-9-1986).

- - -

in the land, after a summary enquiry to satisfy itself about the persons likely to be interested in the land.]

1 [(7) It shall be lawful for the Special Court to pass such order as it may deem fit to advance the cause of justice.   It may award compensation in terms of money for wrongful possession of the land grabbed which shall not be less than an amount equivalent to the market value of the land grabbed as on the date of the order and profits accrued from the land payable by the land grabber to the owner of the grabbed land and may direct re-delivery of the grabbed land to its rightful( owner. The amount of compensation and profits, so awarded and costs of re-delivery, if any, shall be recovered as an arear of land revenue in case the Government is the owner, or as a decree of a civil Court, in any other case to be executed by the Special Court: Provided that the Special Court shall, before passing an order under this sub-section, give to the land grabber an opportunity of making his representation or of adducing evidence, if any, in this regard, and consider such representation and evidence.]

(8) Any case, pending before any court or other authority immediately before the constitution of a Special Court, as would have been within the jurisdiction of such Special Court, shall stand transferred to the Special Court2 [ * * * ] as if the cause of action on which such suit or proceeding is based had arisen after the constitution of the Special Court.

CASE LAW

, Section 8(8) - Appeal, by special leave, from the judgment of Division Bench of High Court of A.P. dismissing writ petition, assailing the order of Special Court under A.P. Land Grabbing (Prohibition) Act, 1982, Special Court upheld the claim of respondent - State of A.P., that appellant was a land grabber and directed the appellant to restore possession of the land to 1st respondent, (i) Whether Special Court has jurisdiction to entertain the suit as it raised bonafide dispute of title. Held - Special Court is a Civil Court having original as well as appellate jurisdiction having all the trappings of a civil court and also a criminal court having powers of the Court of Sessions to which the provisions of the Code of Civil Procedure, A.P. Civil Courts Act and the Code of Criminal Procedure apply. No illegality in the conclusion arrived at by High Court in affirming the finding with regard to jurisdiction of Special Court, (ii) A.P. Land Grabbing (Prohibition) Act, 1982, Sec. 2 (d) and (e). Held - On perusal of judgment of Special Court on the question of title of 1st respondent and that of appellant and his lessor-inamdar. Neither any relevant material was excluded from consideration nor any irrelevant material was relied upon by Special Court in recording its finding. Appellant neither proved factum of possession of land in dispute for period of 30 years nor succeeded in showing that he had animus possidendi for the whole statutory period. Confirmed High Court view that appellant failed to acquire title to the land in dispute by adverse possession. No option but to sustain the view of High Court in approving the finding of Special Court that appellant fell within the mischief of definition of the expression "land grabber" judgment of the High Court upheld - Appeal dismissed. Konda Lakshmana Bapuji vs. Govt ofAndhra Pradesh and others 2002 (1) Supreme 551 = 2002 (6) ALT 1.1 (DN SC).

- - -

1.           Subs by Act 16 of 1987.

2.           The word "having jurisdiction" were omitted by Sec. 6(ix) of Act 16 of 1987.

- - -

Section 8 (1) - Land Grabbers - Application filed for evicting respondents from application schedule property by declaring them as land grabbers and for damages. Applicants 1 to 3 claimed to have purchased plot Nos.29, 30 and 31 respectively under registered sale deeds. On appreciation of oral and documentary evidence, Special Court held that applicants proved their right and title only to an extent of 253 sq. yards in plot No.29 in S.'No.S? and directed the respondents deliver vacant possession of the said property declaring them as land grabbers to that extent only. Claim of applicants with regard to other property. Dismissed - Reasons given by Special Court. Well-founded - No error or illegality committed by Special Court. Respondents claiming to have been in possession of the said land under an agreement of sale (Ex.B-1) executed 28 years back. The alleged agreement of sale never referred to in earlier proceedings. No convincing reasons given for not obtaining sale deed all these years. Special Court correctly found the said document as a fabricated one. No reliance can be placed on the plea of adverse possession raised as it was not pleaded. Adverse possession must be pleaded and established. No error or illegality committed by Special Court justifying interference -Petitions dismissed. S. Ramaswamy and others vs. Spl Court Constituted under the A.P. Land Grabbing (Prohibition) Act, Hyderabad, 2002 (5) ALT 11.

Sections 8 and 15 - Having made the observation that the appellants could have availed the remedy of Review u/s. 17-A of the Act, and the suit for declaration of title and right, the learned Single Judge was held to have not expressed any opinion on the merits of the case because after the High Court had put its seal of approval on the judgment and order of the Special Court, the result of the review Application and the Suit would become a foregone conclusion. Having regard to the remedy of the suit, and to the provisions of sub-sec. (2) of Sec.8 r/w. Sec. 15 of the Act, no suit for title in respect of the disputed land which was alleged to be a land grabbed by the first appellant, could be entertained by the Civil Court. Under sub-sec. (8) of Sec.8 any case, pending before any court or other authority immediately before the constitution of a Special Court, as would have been within the jurisdiction of such Special Court as if the causes of action on which the suits or proceedings were based had arisen after the constitution of the Special Court - Appeal was allowed accordingly. L.L. SudhakarReddy and others vs. State of A.P. and others, 2001 (7) Supreme 411 = 2002 (1) ALT 1 7.2 (DN SC).

In the instant case, petitioner-Society has title over the same property. Conduct of the State does not inspire confidence. State should have taken steps at the appropriate time, when it came to know that persons, not connected with the property are trying to lay hands on the property. Anand Prabat Co-op. Housing Society Ltd. vs. Spl. Court under A.P.L.G. (Prohibition) Act, 2001 (1) ALT 609.

Question of jurisdiction can be raised before the Special Court. However, it does not prevent invoking of jurisdiction under Article 226 of the Constitution. Quite proper to prohibit the Special Court from Proceeding with the case. Anand Prabat Co-op. Housing Society Ltd. vs. Spl. Court under A.P.L.G. (Prohibition) Act, 2001 (1) ALT 609.

Section 8(7) - Interpretation of - Land Grabbing Tribunal or Special Court not having any power to determine the market value of the grabbed land and direct the land owner to receive such market value from land grabber in lieu of grabbed land to be retained by land grabber. Tribunal and Special Court competent only to determine the compensation to be paid to the land owner by land grabber for wrongful possession of the land grabbed while directing redelivery of grabbed land to its rightful owner. Mandal Revenue Officer, Saroornagar Mandal Rangareddy Dist. vs. Special Court under A.P. Land Grabbing (Prohibition) Act at Hyderabad and another: 2001 (4) ALT 687 = 2001 (2) L.S. 375 (D.B.).

Section 8 and Constitution of India, Art. 226 - Petitions to quash the order of the Special Court under the A.P. Land Grabbing (Prohibition) Act in LGC No. 187 of 1989. A.P. • Housing Board vs. Mohammed Sadatullah and others, 2000 (3) ALT 46 = 2000 ALT (Rev.) 339 (D.B.).

Jurisdiction of Special Court - Condition precedent for assuming jurisdiction. Case must have arisen out of any alleged act of land grabbing and application made to that effect. Case can be taken cognizance where question of ownership and title to or lawful possession of land grabbed has arisen. Averments made in the application that the applicant while in lawful possession of property was dispossessed in violation of order of

status quo passed in suit for injunction and thus writ petitioners grabbed the property of applicant in Land Grabbing case. Special Court therefore held as having jurisdiction to try the said L.G. case. Mere failure to transfer the pending civil suit for injunction to Special Court would not affect the jurisdiction of Special Court which it has on the basis of averments made in the application and the counter. Order passed by Special Court holding the writ petitioners as Land Grabbers. Sustainable - However, prosecution ordered against petitioners - Set aside as unwarranted. Gurram Kami Reddy and another vs. State of Andhra Pradesh and others; 2000 (3) ALT 117 = 2000 (2) L.S. 191.

It has come in evidence and also from the reports of the commissioners that the schedule land is an agricultural land. The petitioners are in possession and enjoyment of the same. They have raised several crops. As per the revised assignment policy, the petitioners, who are landless poor persons and who made improvements to the schedule land, were entitled for assignment of the same as there were no legal impediments for such assignment. Silence on the part of the authorities right from 1959 up to the filing of petition before the Special Tribunal by the State in the year 1990 clearly indicates that the authorities were satisfied with the stand taken by the writ petitioners or their predecessors that they have a right to continue in possession and enjoyment of the schedule property by virtue of their long possession and they were entitled for assignment of the schedule land. If the authorities were serious to evict the petitioners or their predecessors from the schedule land, they would have taken appropriate steps much earlier instead of allowing the petitioners to continue in possession and enjoyment of the schedule property. Also they would not have collected land revenue from the petitioners or their predecessors. Even if a person is governed by 'sivai jamabandi', such person is also entitled for assignment ofland. One cannot ignore the right of an unauthorised occupant. When he satisfies or fulfills the conditions stipulated under a statute to seek assignment of Government land and thus became eligible for assignment of such land can he be evicted from it? The answer of the authorities in this behalf is unsatisfactory and evasive.

Originally the ownership of the schedule land was vested with the Government. The possession and enjoyment of the schedule land right from 1959 by Goundla Gopaiah, the senior uncle of the petitioners; after his death by Goundla Mallaiah, father of the petitioners; and after the death of Mallaiah, by the petitioners, is .not disputed by the State. To show that Goundla Gopaiah was in possession of the schedule property even during 1959 till his death, the petitioners have filed additional affidavit sworn to by the 1st petitioner.

Plea of adverse possession can be raised before the Special Tribunal if such plea is not contrary to the provisions of the Act.

Some of the documents produced by both the parties showed the fact of continuous possession and enjoyment of the schedule property by Gopaiah, from him Mallaiah and later by the petitioners. When the genuineness of the entries of those documents was disputed by the State, the petitioners filed an application IA No. 1595/96 to summon the original documents which were in the custody of the authorities. Though the said application was allowed, the authorities failed to produce the same. From this an adverse inference c^n be drawn against the State that if such documents were produced it would have gone in favour of the petitioners.

From the material available it is clear that the petitioners have been in continuous possession successfully without any break right from 1959 upto the date of filing of the petition by the State in the year 1990 filed seeking their eviction. Thus they are entitled to invoke the principle of 'tacking'.

When existence as to certain position is shown in some documents for a period then one can presume the similar situation was existing prior to the same.

The scope of Art. 226 of the Constitution to interfere with the order of the Special Court is very much limited. It is not open to this Court to disturb the findings of fact while sitting under Art. 226. This Court cannot act as a fact finding authority, but it can interfere only when there is an error apparent on the face of the order.

It has come in evidence that originally the State was the owner of the schedule land. But it allowed the petitioners and their predecessors to enjoy the schedule land as their own peacefully, continuously and to its knowledge for more than the statutory period. The petitioners clearly stated in their counter filed before the Special Tribunal as to how and when

their adverse possession commenced and nature of their possession of which the authorities are quite aware. The petitioners' possession over the schedule land is hostile to the State as they have established the ingredients, namely the nature of possession as adequate, in continuity, publicity and extent. The authorities did not object for such continuous possession and enjoyment. As mentioned earlier the principles of adverse possession by tacking will apply to the case of the petitioners. Thus, the petitioners have perfected their title over the schedule property by adverse possession. But the Tribunal without satisfying whether the State has made out a prima facie case for the eviction of the petitioners, entertained the application and ordered eviction of the writ petitioners which was blindly accepted by the Special Court. As the petitioners have succeeded in establishing that they have been in possession and enjoyment of the schedule land for more than the statutory period, and perfected their title over the schedule property by way of adverse possession, to give a finding that the petitioners are land grabbers is quite incorrect and illegal. The orders of the Courts below are in contravention of Sees. 2(d), 2(e) and 8 of A.P. Land Grabbing (Prohibition) Act, 1982. Having reached the above conclusion, it is held that the application filed by the State seeking the eviction of the writ petitioners is illegal and misconceived. Goundla Venkaiah and another vs. Mandal Revenue Officer, SherUngampally Mandal and others: 2000 (4) ALT 107 = 2000 (2) APLJ 381 (D.B.).

The conduct of the Government will pursuade the Court to take a little lenient vie win favour of the petitioners-purchasers to allow their possession and enjoyment on the one hand and to safeguard the interest of the State on the other by directing the petitioners-purchasers to pay compensation to the State.

Regarding market value, no satisfactory evidence was given by both sides. It has come in the evidence of State witnesses that the market value of the land is at Rs. 1000/-Sq.metre.

Justice will be met if market value is fixed at Rs. 1000/- (one thousand rupees) per Sq.metre. This figure is also in agreement with the G.O., dated 3-3-1994. Since both sides agreed to fix reasonable market value, driving the parties once again to approach the Committee to fix the market value by giving evidence is neither warranted nor it serves any purpose. Therefore, it is felt that there is no necessity to give any finding on adverse possession as both the parties expressed their satisfaction if possession of the petitioners is regularised by ordering payment of compensation to the State.

The evidence which the State wants to place in respect of LGC No. 88/98 and the evidence which the petitioner herein likes to produce in support of his case are the same as has been referred in other three writ petitions. As such directing the parties to face the enquiry will be a time consuming, empty formality and waste of public time. C.P. Roy and others (Petitioners) vs. Special Court, Under A.P. Land Grabbing (Prohibition) Act, 1982 and others: 2000 (1) An.W.R. 100.

Section 8 (1) deals with the jurisdiction of Special courts. (1) The special Courts can take cognizance of (i) every case of land grabbing, of (ii) with respect to (a) ownership and (b) title or (c) lawful possession of the land grabbed. (2) The cognizance of cases by the Special court or the institution of the proceedings before that Court may be (i) on an application by any (a) person (b) Officer (c) or authority or (ii)suo motu. All cases in which ownership or title or lawful possession is in issue are not cases in which the Special Court can take cognizance. Those issues must be in a case of alleged land grabbing.

All cases of land grabbing committed before the commencement of the Act can also be taken cognizance by the Special Court. As to the validity of ex post facto Criminal legislation see commentary under Sec. 7-A.

The Special Courts are also given powers to give interim directions. Failure to consider a number of municipal tax reeceipts filed to show occupation for one and half decades vitiates proceeding under Sec. 8. Narayana vs. District Judge. (1) ALT (S.N.) 50.

Section 8 (1-A) -The Special Court does not take cognizance of all cases of land grabbing but it has a discretion to choose the cases of land grabbing, which it may try and decide. The guidelines for such choice of cases are six fold: The Special Court shall consider (1) the location (2) extent (3) value of the land (4) subtantial nature of the evil involved (5) the requirement of the interest of justice or (6) any other relevant matter. Before the case is taken on file, the petitioner shall be heard by the Special Court, as provided in the proviso to the Section.

Sec 8 (2) - This sub-sectionis a non obstante clause, whereby the procedure laid down in the Code of Civil Procedure or Code of Criminal Procedure followed by the Ordinary courts, as

well as the A.P. Civil Courts Act, 1972, which gives pecuniary and territorial jurisdiction to the Civil Courts in the A.P. Stale, shall not bind the procedure and powers of the special Courts. In other words the powers and jurisdiction vested by the Act in the Special Court will not be afected by the A.P.Civil Courts Act and the Special Court will not be governed by the procedure laid down in the two Codes. Sec. 8 (1) and (2) gives the special Court exclusive jurisdiction. Raghavaratnam's case. 1987 (1) ALT 771.

Sec 8 (2-A) - The Special Court is given the power to return a case for presentation before the Special Tribunal (District Court of the area), if it thinks that it is not a fit case to be taken cognizance by it:

The Special Court Can reject caes which are prima facie frivolous or vaxatious.

The Special Court has also power to withdraw land grabbing cases from Special Tribunal and deal with them. The Special Court shall record reasons therefor. Power of the Special Tribunal to transfer cases to Special Court is dealt by Sec.7-A second proviso.

Sec. 8 (2-A) - The Special Court is given the power to return a case for presentation before the Special Tribunal (District Court of the area), if it thinks that it is not a fit case to be taken cognizance by it:

The Special Court Can reject caes which are prima facie frivolous or vaxatious. The Special Court has also power to withdraw land grabbing cases from Special Tribunal and deal with them. The Special Court shall record reasons therefor. Power of the Special Tribunal to transfer cases to Special Court is dealt by Sec. 7-A second proviso.

Sec. 8(2-A) - The circular of the special court under A.P. Land Grabbing (Prohibition)Act in Dis. No. 1655/94/Estt/Reg./SC, dt.30-11-1994 instructs the Special Tribunals not to entertain cases directly filed before them after that date. This Circular is based on the Opinion that all cases of Land Grabbing should be filed before the Special Court and if the Special Court finds any case fit to be tried by Special Tribunal, it may transferred to the Tribunals. However, cases pending before the Special Tribunals by that date was directed to be tried by the Tribunals directly. The text of Notifications is given below.

SPECIAL COURT UNDER A.P. LAND GRABBING (PROHIBITION) ACT

II Floor -B1 Block B.R.K.R. Govt, Offices Complex Tankbuncl Road: Hyderabad- 29.

CIRCULAR

Dis. No. 1655/94/Estt/Regr/SC.                 Dated 30-1 1-1994.

Sub:- Acts - The A.P. Land Grabbing (Prohibition) Act, 1982 sub-sec. (2-A) of Section 8 of A.P. Land Grabbing (Prohibition) Act. 1982 - Filing of all Cases in the first instance before the Special Court under A.P. Land Grabbing (Prohibition) Act, at Hyderabad - Issuance of Instructions to all the District Judges (Special Tribunals) in the State of Andhra Pradesh - Further clarification issued - reg.

Ref:- 1. Circular of Commissioner of Land Revenue, A.P. Hyderabad No. ALP/ 2/373/94 dt. 14-7-1994 issued to all the Collectors and Joint Collectors in the state of A.P.

2.               Dis. No. 1087/94/Estt/SCdt. 13-9-94 issued by the Registrar, Special
Court to all the District Judges (Special Tribunals) in the State of A.P.

3.               Letter addressed by the Registrar (Management) High Court, A.P.
E. 1/94 dated 19-11-94.

4.               Lr. Dis. No. 1255/94/Estt/SC/dated 11 -10-94 from the Registrar  I/
C. Special Court to the Special Tribunal, Chittoor.

5.               Lr. Dis.No.1648/94/Regr/Estt/SC/dt. 29-11-94 from the Registrar,
Special Court to the Registrar (Management) High Court of A.P.

In the circular 2nd cited the Special Court under the A. P. Land Grabbing (Prohibition) Act, issued instructions to the Special Tribunals under the A. P. Land Grabbing (Prohibition) Act, requesting them not to entertain cases that might be filed under the Act, from the date of the aforesaid circular.

The special Tribunals were also requested to advise the parties to file all the cases under the Act directly in the Special Court in the first instance.

Subsequently, the Special Tribunal, Chittoor wrote a letter soliciting instructions as to whether the said Special Tribunal could proceed with the enquiry in the cases that were Pending cases before it. In continuation of the circular 2nd cited, the Special Tribunals under the A.P. Land Grabbing (Prohibition) Act, are hereby informed that in order to avoid inconvenience and un-necessary expenditure to the parties, the Special Tribunals should Try all those cases pending before them.

Sec. 8 (2-B) - The provisions of the code of Criminal Procedure shall not affect the jurisdiction and powers of the Special court to try offences under this Act. This provision simply reiterates the non obstante clause contained in Sec. 8 (2).

Section 8 (2-C) deals with the order in which the civil and Criminal liabililty shall be tried. It may be noted that the trial contemplated by this Act is a peculiar experiment, inasmuch as the Civil and Criminal liability of an accused-cum-defendant will have to be decided in one and the same trial by one the same Court. It is to be seen that the Regulations that may be framed by the special Court shalll harmonise some of the fundamental principles of Civil Criminal procedure which may be in conflict. This sub­section gives power to the Special Court to decide whether the Civil liabillity or the Criminial liability that is to be first tried. The Special Court may decide to deliver its decision after the civil and criminal proceedings are completed or not. The evidence in criminal proceedings may be made use of in the trial of civil liability but in the civil case additional evidence may be adduced. The defendant or accused is competent to give evidence on oath. The proviso to the sub-section lays down that there shall not be testimonial complusion. This proviso is in conformity with the principle enshrined in Art.20(3) of the constitution, Art. 20(3) reads "No person accused of any offence shall be compiled to be a witness against himself, this clause is held not to be applicable to the category of material evidence such as specimen handwriting and finger impressions. State of Bombay vs. Kathi Kalu Oghad, AIR 1961 SC 1808. No adverse presumption can be drawn, if the defendant or accused did not examine himself. It is not clear whether the alleged land grabber can choose to be a witness in the trial of civil liabililty and choose not to be examined at the trial of the criminal liabililty. It is also not clear that when the evidence of the accused in the trial of the criminal liability is available the evidence could be used in deciding the criminal liability.

No restrictions are placed on the application of Evidence Act. Certain provisions of the Evidence Act, for example, the provisions relating confessions, have application to Criminal trial only. The said aspect of law as applicable to Civil trial is dealt under the head of'admissions'. The mode of admission of documents in evidence differs, according to the nature of tiral. There are absolutely no guidelines for shifting such evidence and consider them separately in judging the civil and criminal liabilities. This will assume importance in view of the proviso which upholds the principle regarding testimonial complusion, that is a person shall not be compiled to give evidence against himself.

Sec. 8 (4) - The recommendatory period of six months for disposal of cases as in the case of Special Tribunal is contained in this provision. It may be noted that the same period of six months is recommended for disposal of land grabbing cases by the Special Tribunal.

Section 8 (6) lays down that the findings of the Special court with regard to (1) fact of land grabbing and (2) the persons who committed land grabbing, are conclusive proof of facts. In other wards, these findings are irrebutable. See Sec. 4 of the Evidence Act. The judgment regarding (1) title (2) ownership and (3) lawful possession is binding on, not only the parties to the proceedings, but also on allpersons having interest in such land. Such

findings and judgments are resjudicata with reference to parties. The principle is enlarged to cover persons, who are not parties.

The procedure regarding the notification of cognizance ofthe cases, invitation of objections, summary enquiry for the purpose of finding the persons who are known or believed to be interestedintheland are all similar to those prescribed for Special Tribunals and contained in the three provisos Sec. 7 (4) applicable to Special Tribunal.

Sec. 8 (7):- deals with the reliefs that can be granted by the Special court. (1) The relief of compensation can be granted and the amount so granted shall not be less than the market value ofthe land grabbed and profits accrued from the land (2) the direction to re-deliver the grabbed land can be passed. In so far as execution for the recovery of compensation is concerned, the recovery shall be as though it is land revenue, where the Government is the owner ofthe land. Hence the A.P. Revenue Recovery Act is applicable to such cases. In all other cases the recovery of either compensation or restoration of possession, the proceedings as in the case of civil court shall be initiated. This indicates that the provisions for execution contained in the C.P.C. are to be followed. The execution proceedings shall also be in the Special Court. The power to grant the reliefs and the mode of execution ofthe decree and realisation, in so far as they relate to Special Tribunals, are stated in Sec. 7-A (5) of the act.

Section 8 (8) makes an automatic transfer of cases of land grabbing pending in any Court, on the date ofthe Act, to the Special Court. The words employed are shall stand transferred and hence there is an automatic transfer of those cases to the Special Court. A similar provision for transfer of such cases to Special Tribunal is contained Sec. 7-A (6) of the Act. It is again not clear whether the cases tribal by the Special Court have to be chosen by the Special Tribunal or by the Special court itslef. In view of Sec. 7-A (6) and Sec. 8 (8) the cases of land grabbing pending on the date ofthe commencement ofthe Act before various ordinary Courts, shall stand transferred.

The leading case on the point is Raghavarathnam vs. State of A.P. 1987 (1) A.L.T. 771.

(1)      Facts: Eighteen acres of land said to be at Hanumakonda within the Municipal
area of Warangal was claimed to have been assigned in favour of Mallaiah in
1335 Fasli. He sold that land to Narasimahaswamy, who in turns sold in favour
of petitioner in 1965 and 1966. In 1974, the petitioners were sought to be evicted
under Sec. 7 of the A.P. Land Encroachment Act. The petitioner filed Originals
Suit for declaration and injunction which was tried by Sub Judge.

(2)      During trial one Ramulu sought to be impleaded, on the ground that he was an
applicant for the allotment of the land and the prayer was refused. He filed
another application to stay further proceedings and transmit the suit records
to the District Court Special Court under the Land Grabbing (Prohibition) Act,
to be tried under that Act. This petition was also dismissed.

(3)      The trial proceeded and concluded and thejudgment was reserved. At that stage
Ramulu filed Original Petition before the Dist. Court to declare that the

Sec. 8 (2-B) - The provisions of the code of Criminal Procedure shall not affect the jurisdiction and powers ofthe Special court to try offences under this Act. This provision simply reiterates the non obstante clause contained in Sec. 8 (2).

Sec. 8 (2-C) deals with the order in which the civil and Criminal liabililty shall be tried. It may be noted that the trial contemplated by this Act is a peculiar experiment, inasmuch as the Civil and Criminal liability of an accused-cum-defendant will have to be decided in one and the same trial by one the same Court. It is to be seen that the Regulations that may be framed by the special Court shalll harmonise some ofthe fundamental principles of Civil Criminal procedure which may be in conflict. This sub-section gives power to the Special Court to decide whether the Civil liabillity or the Criminial liability that is to be first tried. The Special Court may decide to deliver its decision after the civil and criminal proceedings are completed or not. The evidence in criminal proceedings may be made use of in the trial of civil liability but in the civil case additional evidence may be adduced. The defendant or accused is competent to give evidence on oath. The proviso to the sub-section lays down that there shall not be testimonial complusion. This proviso is in conformity

with the principle enshrined in Art. 20 (3) of the constitution : Art. 20 (3) reads "No person accused of any offence shall be complied to be a witness against himself, this clause is held not to be applicable to the category of material evidence such as specimen handwriting and finger impressions. State of Bombay vs. Kathi KaJu Oghacl. A.I.R. 1961 S.C. 1808. No adverse presumption can be drawn, if the defendant or accused did not examine himself. It is not clear whether the alleged land grabber can choose to be a witness in the trial of civil liabililty and choose not to be examined at the trial of the criminal liability. It is also not clear that when the evidence of the accused in the trial of the criminal liability is available the evidence could be used in deciding the criminal liability.

No restrictions are placed on the application of Evidence Act. Certain provisions of the Evidence Act, for example, the provisions relating confessions, have application to Criminal trial only. The said aspect of law as applicable to Civil trial is dealt under the head of'admissions'. The mode of admission of documents in evidence differs, according to the nature of tiral. There are absolutely no guidelines for shifting such evidence and consider them separately in judging the civil and criminal liabilities. This will assume importance in view of the proviso which upholds the principle regarding testimonial complusion, that is a person shall not be complied to give evidence against himself.

Sec. 8 (4) :- The recommendatory period of six months for disposal of cases as in the case of Special Tribunal is contained in this provision. It may be noted that the same period of six months is recommended for disposal of land grabbing cases by the Special Tribunal.

Sec. 8 (6) :- lays down that the findings of the Special court with regard to (1) fact of land grabbing and (2) the persons who committed land grabbing, are conclusive proof of facts. In other wards, these findings are irrebutable. See Sec. 4 of the Evidence Act. The judgment regarding (1) title (2) ownership and (3) lawful possession is binding on, not only the parties to the proceedings, but also on allpersons having interest in such land. Such findings and judgments are res judicata with reference to parties. The principle is enlarged to cover persons, who are not parties.

The procedure regarding the notification of cognizance ofthe cases, invitation of objections, summary enquiry for the purpose of finding the persons who are known or believed to be interestedinth eland are all similar to those prescribed for Special Tribunals and contained in the three provisos Sec. 7 (4) applicable to Special Tribunal.

Sec. 8 (7):- deals with the reliefs that can be granted by the Special court. (1) The relief of compensation can be granted and the amount so granted shall not be less than the market value ofthe land grabbed and profits accrued from the land (2) the direction to re-deliver the grabbed land can be passed. In so far as execution for the recovery of compensation is concerned, the recovery shall be as though it is land revenue, where the Government is the owner of the land. Hence the A.P. Revenue Recovery Act is applicable to such cases. In all other cases the recovery of either compensation or restoration of possession, the proceedings as in the case of civil court shall be initiated. This indicates that the provisions for execution contained in the C.P.C. are to be followed. The execution proceedings shall also be in the Special Court. The power to grant the reliefs and the mode of execution ofthe decree and realisation, in so far as they relate to Special Tribunals, are stated in Sec. 7-A (5) of the act.

Section 8 (8) - makes an automatic transfer of cases of land grabbing pending in any Court, on the date of the Act, to the Special Court. The words employed are shall stand transferred and hence there is an automatic transfer of those cases to the Special Court. A similar provision for transfer of such cases to Special Tribunal is contained Sec. 7-A (6) of the Act. It is again not clear whether the cases tribal by the Special Court have to be chosen by the Special Tribunal or by the Special court itslef. In view of Sec. 7-A (6) and Sec. 8 (8) the cases of land grabbing pending on the date ofthe commencement ofthe Act before various ordinary Courts, shall stand transferred.

The leading case on the point is Raghavamthnam us. State of A.P., 1987 (1) ALT 771.

(1) Facts: Eighteen acres of land said to be at Hanumakonda within the Municipal

area of Warangal was claimed to have been assigned in favour of Mallaiah in

1335 Fasli. He sold that land to Narasimahaswamy, who in turns sold in favour

of petitioner in 1965 and 1966. In 1974, the petitioners were sought to be evicted

under Sec. 7 of the A.P. Land Encroachment Act. The petitioner filed Originals Suit for declaration and injunction which was tried by Sub Judge.

(2)      During trial one Ramulu sought to be impleaded, on the ground that he was an
applicant for the allotment of the land and the prayer was refused. He filed
another application to stay further proceedings and transmit the suit records
to the District Court Special Court under the Land Grabbing (Prohibition) Act,
to be tried under that Act. This petition was also dismissed.

(3)      The trial proceeded and concluded and the judgment was reserved. At that stage
Ramulu filed Original Petition before the Dist. Court to declare that the
petitioners are land grabbers and to resume the land. The State of A.P. also filed
similar petition. The Dsitrict Judge passed a common order to transmit the
record to his file under Sec. 8(8).

(4)      Revision petition was filed against that order.

(5)      Sec. 15 provides that the Land Grabbing Act is applicable, notwithstanding
anything inconsistent in any other law for time being in force or custom, usage,
agreement or decree or order of a Court or any other Tribunal or authority. Sec.
8 (1) confers power on Special Court to take cognizance and try cases of Land
Grabbing. Sec 8 (2) provides that those cases shall be triable only in a Special
Court. The aforesaid provisions make the Special Court, a Court of exclusive
jurisdiction. No doubt that a suit for declaration of title and ownership is a suit
of Civil nature ordinarily triable by Civil Courts. The Exclusion of jurisdiction
of Civil Court is not to be readily assumed or lightly inferred but must be inferred
by necessary implication. Sec. 8 (8) of the Act requires that cases of land
grabbing shall stand transferred to the Special Court and hence a Civil Court
is barred from trying those cases. Desikacharyulu vs. State of A.P. was relied.

(6)      Though the cause of action for the suit arose in 1974, when the Act has not come
to force, by virtue of the legal fiction under Sec. 8 (8) of the Act, the cause of
action shall be deemed to have arisen after the constitution of the Special Court,
as the case was pending when the Act has come into force, it shall be enquired
into under the exclusive jurisdiction of the Special Court.

(7)      The Order of the subordinate Judge refusing to transmit the record to District
Judge,  was  without jurisdiction  and  cannot  constitute   res judicata,
venkataratnam vs. Ramdas 1970 (2) An.WR 247= AIR 1971 A.P. 211 relied.

(8)      It is for the Special Court and Special Court alone to come to a decision whether
a prima facie case is made out for enquiry. Subordinate Judge is not competent
authority to determine whether the Act is applicable. Raghavarathnam vs. State
ofA.P., 1987(1) ALT 771.

It appears that when transfer of such cases to the Special Court or the Special Tribunal is made, then the Special Court and Special Tribunal will exercise the power vested in them to transfer to the appropriate Court by exercising discretion and the powers to (1) withdraw under second proviso to sub-section (2A) of Sec. 8 and return any case for presentation before the Special Tribunal under the second proviso to Sec. 7-A (1) of the Act.

When the writ petitioner raised the plea that they are in occupation of the land for 1 1 \2 decades and produced 54 Municipal Tax Receipts, even though they did not produce clear evidence for payment of sale consideration to the owner, the failure on the part of the Special Tribunal to consider the Tax Receipts vitiates the proceedings. C. Narrayana vs. District Judge, 1988 (1) APLJ (S.N.) 50.

Section 8 and A.P. Civil Courts Act, 1972 Sec. 11 (2) and General Clauses Act Sec. 3( 17) - District Judge discharging functions as Special Court under the Act. Not a persona designata but only acts as a Presiding Officer of District Court. District Judge has power to assign a matter under the Act to Additional District Judge for disposal as Special Court. New Jaji Labour Society vs. Haji Abdul Rahaman Sahab, 1992 (1) ALT 112= 1992 (1) An. WR 220 (D.B.).

Sections 8(4) and 17-B and C.P:C., 1908, Or. 1, Rule 10(2) - Petitioners sought to be impleaded are persons interested being purchasers of land under enquiry. Petitioner in

Land Grabbing case not joined them as respondents in spite of knowledge that they are interested persons. Vendors of petitioners joined as respondents in the case cannot be expected to look after the interests of impleading petitioners. Judgment of Special Court binding on all persons having interest whether they are parties or not. Case pending for more than three years - Impleading application filed at the stage when case was posted for final hearing. Delay in filing application for impleading not a ground for its rejection in the circumstances of the case. Provisions of Sees. 8(4) and 17-B cannot be used as a circumstance against petitioners. Land in question is also in possession of the petitioner in Land Grabbing case. Dismissal of impleading application by Special Court in such circumstances - Not justified. Smt B. LolitaDevi vs. Spl. Court under A.P. Land Grabbing (Prohibition) Act, Hyderabad, 1993 (1) ALT 204 = 1993 (1) An.WR 49.

Sec. 8(6), Third Proviso arid A.P. Land Grabbing (Prohibition) Rules, 7(1) and 8 — Petitioner-Municipal Corporation being aware of the names of purchasers of land, now sought to be impleaded, even by the date of filing of case should have been impleaded as respondents, being the persons interested. Special Court not at fault in not issuing notices to them for want of sufficient material before it.

Section 8 - No material on record to show that petition schedule land corresponds to land sold under Ex.A-2 on which applicants rely to prove their title to land. Finding of Special Court that applicants proved their title is perverse. K. Krishna and others vs. The Special Court under the A.P. Land Grabbing (Prohibition) Act, Hyderabad and others: 1995 (l)An.W.R. 451 (D.B.).

Section 8(1) - Jurisdiction of Special Court - Special Court can enquire into land grabs occurred prior to coming into force of the Act also. Act has retrospective effect — Entertainment of application relating to alleged land grab in November, 1979 prior to coming into force of the Act from 29-6-1982 - Proper. K. Krishna and others vs. The Special Court under the A.P. Land Grabbing (Prohibition) Act, Hyderabad and others; 1995 (1) An.W.R. 451 (D.B.).

Section 8(2) and (6) - Jurisdiction of Special Court - In an act of land grabbing, Special Court can play the role of a Civil Court and decide disputed questions of title and possession. K. Krishna and others vs. Special Court under the A.P. Land Grabbing (Prohibition) Act, Hyderabad and others: 1995 (1) An.WR 451 (D.B.).

Section 8(6) - Finding of Special Court on the question of title of applicants to land in question not based on any material evidence on record - Vitiated. Applicants not established their possession of land within twelve years prior to application. In the absence of valid finding on question of title, burden does not lie on the other side to prove their adverse possession. High Court can interfere even with finding of fact based on no evidence. Judgment of Special Court is laible to be quashed. Principles of natural justice or statutory requirements not violated. Documents relied on by applicants do not support their title. Remand for reconsideration not warranted as applicants had ample opportunity to adduce evidence. K. Krishna and others vs. Special Court under the A.P. Land Grabbing (Prohibition) Act, Hyderabad, 1995 (1) An.W.R. 451 (D.B.).

Section 8{2) and Constitution of India, Article 226 - Special Court recorded a finding on appreciation of evidence that alleged compromise deed is a genuine document. Finding not unreasonable. Nor principles of natural justice violated - Reappraisal of evidence by High Court - Forbidden. Tadi Surya Rao vs. Dr. Gurubhavatula Ramakrishna Rao and another, 1996 (3) ALT 763 (D.B.) = 1996 (2) APLJ 257.

Sections 8(2) and 10 - Title to and lawful possession of land grabbed - Determination by Special Court final. On prima facie proof by applicant that land belongs to him, presumption can be drawn that person alleged to have grabbed the land is land grabber. Burden then shifts on to land grabber to prove that land has not been grabbed by him. Any enquiry by High Court under Article 226 of the Constitution into order of Special Court which is final akin to exercise of appellate jurisdiction - Forbidden. TadiSuryaRao vs. Dr. Gurubhavatula Ramakrishna Rao and another: 1996 (3) ALT 763 (D.B.) = 1996 (2) APLJ 257.

Sections and Limitation Act, 1963 Section 27 and Article 65 and Constitution of India, Art. 226 - Application to evict respondent, alleged land grabber, from schedule property and to put petitioner in possession of the same and to take criminal action against respondent. Evidence adduced supports respondent's possession and enjoyment of schedule property for more than statutory period of 12 years, Petitioner was dispossessed in 1970. He kept quiet all these years without taking any action to recover possession — Respondent is in adverse possession of property to the knowledge of petitioner and without objection for more than 18 years. No fraud played by respondent on Court. Maternal facts not suppressed by him. Petitioner failed to prove that respondent is a land grabber and has been in unlawful possession of the schedule land. Even though adverse possession is not specifically pleaded, evidence adduced proves that respondent perfected his title by adverse possession which is acceptable. Limitation Act applies to land grabbing cases until different limitation period is prescribed under the Act. Right, if any, of petitioner extinguished under Section 27 of the Limitation Act. Application filed by petitioner barred by limitation. No illegality or irregularity committed by Special Court in rejecting the application warranting interference under Article 226 of the Constitution. No action can be taken against respondent under the Act - Petition dismissed. Mohd. Iqbal vs. N. Prabhakar; 1998 (4) ALT 469 (D.B.) = 1998 (1) L.S. 671 = 1998 ALT (Rev.) 609.

Section 8(2) - Jurisdiction of Special Court - Extent of - Wide in its application - Cases relating to alleged act of land grabbing or determination of questions of title and ownership to any land grabbed or lawful possession of such land are triable in Special Court under the Act and decision of Special Court is final. Such cases not triable in Civil Court. Those three situations are independent of each other. KondaLakshmanaBapiyi vs. Government ofA.P., 1998 (6) ALT 277 (D.B.).

Section 8(2) - Special Court equated to Civil Court with all its powers - Special Court is within its jurisdiction in making a detailed enquiry by way of regular trial as in a civil suit to find out whether writ petitioner has any paramount title to petition schedule property. On evidence, it was found that there was no valid regrant by Nizam to petitioner's predecessor-in-title, that it was Government property, that no bona fide dispute of title involved in the case to oust the jurisdiction of Special Court and that writ petitioner is a land grabber. No evidence adduced to prove adverse title by petitioner. No interference with the said findings called for. No error of jurisdiction committed by Special Court. Konda LaJcshmana Bapuji vs. Government of A.P.; 1998 (6) ALT 277 (.D.B.^

l{9. Special Court to have the powers of the Civil Court and the Court of Session:—

Save as expressly provided in this Act, the provisions of the Code of Civil Procedure, 1908, the Andhra Pradesh Civil Courts Act, 1972 and the Code of Criminal Procedure, 1973, in so far as they are not inconsistent with the provisions of this Act, shall apply to the proceedings before the Special Court and for the purposes of the provisions of the said enactments, Special Court shall be deemed to be a Civil Court, or as the case may be, a Court of Session and shall have all the powers of a Civil Court and a Court of Session and the person conducting a prosecution before the Special Court shall be deemed to be a Public Prosecutor.

CASE LAW

Section 9 and Civil Procedure Code, 1980, Order 1, Rule 10 - Provisions of C.P.C. applicable to proceedings before Special Court in so far as they are not inconsistent with

- - -

1.   Sections 9, 10 and 10-A substituted for old Section 9 and Section 10 by Act 16 of 1987 (w.e.f. 18-9-86).

- - -

provisions of Act. Petition under Order 1, Rule 10 C.P.C. for impleading petitioners as respondents in Land Grabbing case maintainable as being not inconsistent with provisions of the Act.

Section 9 and A.P. Land Grabbing (Prohibition) Rules, 1988, Rule 13 and Code of Civil Procedure, 1908, Order 1, Rule 10 - Rule 13 cannot override provisions of Sec. 9 of the Act. Special Court not barred in entertaining petition under Order 1, Rule 10 in cases taken cognizance of by it.

And Rule 7(1) - Notice in Form II-A - Purchasers of land from Land Grabbers not impleaded as respondents in Land Grabbing case in spite of knowing that they were persons interested. Notice in Form II-A cannot be treated as sufficient notice to them and their rignt to come on record is not lost on account of their failure to file objections pursuant to such notice. Smt. B. Lalita Devi and others vs. The Special Court under A.P. Land Grabbing (Prohibition) Act, Hyderabad & others, 1993(1) ALT 204=1993(l)An.W.R. 49.Sec. 9 :- This Section is to be read with Sec. 8 (2) Firstly, the effect of these two provisions is that Special Court is not constituted under any of the three Statutes but under this Act only, though the Special Court shall have power of a Civil Court and a Court of Session, as contemplated under the said three enactments. Secondly, the three enactments are applicable to the proceedings before the Special Court, in so far as they are not inconsistent with the provisions of this Act.

Sections 9 and 7 (5-D) and Civil Procedure Code, 1908, Order 20 Rule 2 - Applicability of C.P.C. - Provisions of C.P.C. applicable under Section 9 to proceedings under the Act insofar as they are not inconsistent with any of the provisions of the Act in spite of sub­section (5-D) of Section 7 of the Act empowering Special Court to follow its own procedure not inconsistent with principles of natural justice. No provision in the Act or the Rules framed thereunder similar to provision of Order 20 Rule 2, CPC. Pronouncement by existing Bench of Special Court of a judgment prepared by erstwhile Bench following the provision of Order 20 Rule 2, CPC - Valid. Special Court empowered to follow provisions of CPC as aforesaid and principles of naturaljustice. DuvvuTata Rao and others vs. Special Court under A.P. Land Grabbing (Prohibition) Act, Hyderabad and another; 1999 (2) ALT 23 = 1999 (2) An.W.R. 1 (D.B.).

*10. Burden of proof:—

Where in any proceedings under this Act, a land is alleged to have been grabbed, and such land is primafacie proved to be the land owned by the Government or by a private person the Special Court or as the case may be, the Special Tribunal shall presume that the person who is alleged to have grabbed the land is a land-grabber and the burden of proving that the land has not been grabbed by him shall be on such person.

CASE LAW

On prima facie proof of ownership, the land shall be presumed to have been grabbed and it is for the land grabber to prove that he has not been guilty of land grabbing. We have seen that under Sec. 2 (e) - Land grabbing is committed with reference to the land belonging to (1) Government (2) Local authority (3) a religious or charitable institution or endowment, including wakf or (4) any other private person. The presumption under Sec. 10 is applicable only to the lands owned by (1) Govenment or (2) a private person, There is no reason why the presumption is not made applicable to the grabbed lands belonging to (i) Local Authority and (ii) religious or charitable institution or endowment including the wakf. The notes on clauses also does not throw any light on this discrimination. This presumption can be invoked only before the Special Court and not

- - -

1.  Subs, by of Act 16 of 1987.

- - -

before a Special Tribunal, as could be seen from the specific mention of the Special Court in the Section. The question is, can such a presumption be made on a prima facie case in a criminal trial. Every accused is presumed to be innocent, unless proved otherwise. If a presumption of guilt were to be made on a Prima facie case, does it offend Article 21 if the Constitution? Personal liberty can be deprived only according to the procedure established by law and that law infringing the personal liberty shall be reasonable, as laid down in Maneka Gandhi vs. Union of India, (1978) 2 S.C.J. 312= A.I.R. 1978 S.C. 597=(1978) 2 S.C.R. 621= (1978) 1 S.C.C. 248. Can it be said that the law which directs the Courts to presume guilt on prima facie case is reasonable law and does not offend Art. 21 of the constitution ?

Acceptable evidence adduced by first respondent as to his title to land in question — Presumption drawn that petitioner is a land grabber. Petitioner failed to discharge the burden shifted to him that land was not grabbed by him. Claim of first respondent accepted by Special Court. No grounds to interfere with conclusions recorded by Special Court. TadiSuryaRao vs. Dr. GurubhavatulaRamakrishnaRao, 1996 (3) ALT 763 (D.B.) = 1996(2) APLJ 257.

Section 10 and Civil Procedure Code, 1908, Order 18 Rule 1 - The initial burden to show that the petitioners in the CRP are land grabbers is on the Government. The onus shifts thereafter only. It is the duty of the respondents in the CRP to lead the evidence initially. The impugned order directing the petitioners in the CRP to adduce their evidence before the Government are called upon to adduce their evidence cannot be sustained. Bahagyah Bai and others vs. The Mandal Revenue Officer, Golconda, R.R. District and another; 1997 (4) ALT 640.

Burden of proof - Land Grabbing - Initial burden lies on complainant, whether Government or private person, to prima facie prove that land alleged to have been grabbed belongs to it or him. On discharge of such burden, presumption arises that the land is grabbed and burden shifts to alleged land-grabber to prove that land in question was riot grabbed by him. Case filed by Government that petitioners grabbed Government lana Government, however, failed to discharge its initial burden that the said land is Government land. Registering of Land Grabbing case by itself cannot be taken as prima facie discharge of initial burden by Government as required under Section 10 of the Act

Petitioners claim to be in adverse possession of lands in dispute - Not proved. Failure
to prove the said contention not a ground to hold that petitioners are land grabbers.
Casting burden exclusively on petitioners by Special Court to prove their title. Erroneous

Finding of Special Court that petitioner are land-grabbers not based on any evidence
but based on surmises and conjectures. Interference by High Court under Article 226
warranted where finding of Special Court which is a quasi-judicial Tribunal is based on
no reasonable evidence - Impugned order set aside. AbdulKhuddus vs. State of A.P., rep.
by Sub-Collector, Vijayawada, 1998 (5) ALT 710 (D.B.) .

Section 10 - Burden of proving that land has not been grabbed is on^he person alleging the same. Konda Lakshmana Bapiyi vs. Government ofA.P.; 1998 (6) ALT 277 (D.B.).

Burden of proof - Land Grabbing - Initial burden lies on complainant, whether Government or private person, to prima facie prove that land alleged to have been grabbed belongs to it or him. On discharge of such burden, presumption arises that the land is grabbed and burden shifts to alleged land-grabber to prove that land in question was not grabbed by him. Case filed by Government that petitioners grabbed Government land. Government, however, failed to discharge its initial burden that the said land is Government land. Registering of Land Grabbing case by itself cannot be taken as prima facie discharge of initial burden by Government as required under Section 10 of the Act. Petitioners claim to be in adverse possession of lands in dispute - Not proved. Failure to prove the said contention not a ground to hold that petitioners are land grabbers. Casting burden exclusively on petitioners by Special Court to prove their title - Erroneous. Finding of Special Court that petitioner are land-grabbers not based on any evidence but based on surmises and conjectures. Interference by High Court under Article 226 warranted where finding of Special Court which is a quasi-judicial Tribunal is based on no reasonable

evidence - Impugned order set aside. Abdul Khuddus and others vs. State of A.P.. rep. by Sub-Collector, Vyayawada and another; 1998 (5) ALT 710= 1999 ALT (Rev.) 11 = 1999(1) An.W.R 303 = 1999 ALT (Rev.) 11.

Land Grabbing - Plea of adverse possession - Both the Special Tribunal and Special Court found writ petitioners to be land grabbers. Theory of adverse possession rejected and eviction ordered. First respondent (petitioner before the Tribunal) established that she is the owner of the petition schedule property. Her claim of ownership is also supported by admission made by Counsel for the writ petitioners before Special Court. Such an admission recorded by Special Court is a judicial record which cannot be questioned and held as wrongly made. Writ petitioner's Counsel put forth only adverse possession. First respondent having established her ownership, writ petitioners must be presumed to be land grabbers. Burden lies on writ petitioners to prove to the contrary. They failed to establish their plea of adverse possession by proving their continuous and exclusive possession and enjoyment of the land for a statutory period to the knowledge of the real owner. Findings of Tribunal and Special Court upholding the ownership of first respondent and rejecting adverse possession put forth by writ petitioners. Sustainable -Scope of interference by High Court under Article 226 in matters of this type is very much limited. No grounds to interfere with orders of both the Tribunal and Special Court -Petition dismissed. P. Ravinderand others vs. Smt. Ethirajamma and another: 1999 (2) ALT 249 (D.B.) = 1999 ALT (Rev.) 422 = 1999 (1) L.S. 502.

'10-A. Staff of the Special Court:—

(1)             The Chairman of the Special Court may appoint officers and
other employees required to assist the Special Court in the
discharge of its functions under this Act.

(2)             The categories of officers and employees who may be appointed
under sub-section (1), their salaries, allowances and other
conditions of service and the administrative powers of the
Chairman of the special Court shall be such as may be prescribed,
after consultation with the Chairman".]

CASE LAW

The staff of the Special Court shall be by appointment by the Chairman of the special Court. Such powers of appointment and administrative powers of the Chairman will be detailed in the Rules to be framed under Sec. 16 of the Act. The Rules shall also provided for (1) Categories of officers (2) their salaries (3) allowances (4) other conditions of Service.

11. Power to try offences : —

Notwithstanding anything in the Code of Criminal Procedure, 1973, every offence punishable under this Act shall be tried by a Magistrate of the First Class specially empowered by the Government in this behalf.

CASE LAW

This Section provides for the trail of the Criminal liability of the land grabber even by a Magistrate of the First Class. Such Magistrate of the First Class shall be specially empowered by the Government in that behalf. This Section probably is incorporated in anticipation of influx of innumerable cases of criminal liability in land grabbing. In case the special court and the special tribunal were to be flooded with cases, then the Criminal liability alone may be tried by such Magistrate of the First Class. With regard to the procedure to be followed by the Magistrate of the First Class, it may be inferred that the Code of Criminal Procedure is a applicable. With regard to the right of appeal or revision against the judgment of conviction or acquittal or any other order, there is no provision available in the Act. In such circumstance, it may be inferred that the Appeal or Revision

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1.   Subs, by Sec. 7 of Act 16 of 1987.

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provided under the Code of Criminal Procedure shall be followed. We may have to look to the Limitation Act for the period within which the appeal shall be filed.

Sections 11 and 12 - Appear to lay down conflicting principles, in as much as, cases of land grabbing can be taken cognizance of by the Courts other than Special Court, only with the previous sanction of the Special Tribunal. An harmonious construction of Sec. 11 Sec. 12 would lead us to an inference that the Magistrate of the First Class specially empowered by the Government can take Cognizance of the offence of land grabbing, when the previous sanction of the Tribunal is granted with reference to particular cases.

12. Sanction for prosecution of offence under the Act:—

1[No Court other than the Special Court] shall take cognizance of an offence punishable under this Act, except with the previous sanction of the 1[Special Tribunal] which sanction shall be accorded having regard to the circumstances of each case.

CASE LAW

The Special Tribunal can accord previous sanction to any Court to take cognizance of an offence punishable under this Act. The other Courts referred to in this Section may be the Magistrate of the First Class specially empowered by the Government, It is stretching too much to lay a principle that the Special Tribunal can grant previous sanction to a Court, other than the First Class Magistrate specially empowered by the Government, to take cognizance of the offence punishable under this Act.

13. Persons acting under the Act to be public servants:—

Any person acting under this Act shall be deemed to be a public servant within the meaning of Section 21 of the Indian Penal Code.

14. Protection of persons acting in good faith:—

No suit, prosecution of other legal proceeding shall lie against2 [any officer or employee of the special Court] or any officer of the Government for anything which is in good faith done or intended to be done under this Act or the rules made thereunder.

CASE LAW

This Section accords immunity for acts done or intended to be done under this Act or Rules, in good faith. The General Clauses Act (Central Act X of 1897). Section 3(22) defines"a thing shall be deemed to be done 'in good faith' whether it is in fact done honestly, whether it is done negligently or not'. An element of honesty is to be found in this definition. A negligent act can also be in good faith. The Limitation Act, 1963 Section 2(h) defines "nothing shall be deemed to be done in good faith, which is not done with due care and attention". Also see Section 2 (7) of Central Act 9 of 1908. Presidency Towns Insolvency Act, Section 55 also employs the phrase. The definition of'good faith' in the A.P. general clauses Act, Section 3(11) and the Indian Penal Code, Section 52 are identical. Section 52 defines 'good faith' "nothing is said to be done or believed in good faith which is done or believed in good faith which is done or believed without due care and attention." In "Anthony Udayar Velusami Thevar, AIR 1948 Mad. 469, it -."as held that 'good faith' is relative to a great extent and must be determined by the circumstances under which the act was done, the social status and level of education and their reasoning capacity. In In re Ganapthiah AIR 1953 Mad. 936, it was held that 'Good faith' does not require logical infallibility, but due care and caution, which must in each case be considered with reference to the general circumstance, the capa<. ..y and intelligence of the person, whose conduct is in question as defined in Section 52 of I.P.C.

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1.            Subs, by Sec. 7 of Act 16 of 1987.

2.            Subs, by Act 16 of 1987.

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In Ayeasha Bi vs. Peerkhan Sahib AIR 1954 Mad. 741, it was held that in goods faith, an essential ingredient is honest of purpose. The accused must firstly honestly believe his imputation (in a defamation case) to be true and secondly, he must honestly make it from a sense of duty to himself. In Public Prosecutor vs. Venkatramayya AIR 1963 A.P. 106 it was held that the question of good faith is naturally one of fact to be determined with reference to the circumstances of each case.

The element of honesty is introduced in the definition of 'good faith' in the General Clauses Act 10 of 1897 See AIR 1966 S.C. 97.

In Chamanlal vs. The State Punjab AIR 1970 S.C. 1372, it was held that in order to establish good faith and bona fide, the circumstances, existence of malice or otherwise, an enquiry before the complained Act and reasonable action with care and caution, are to be proved.

15. Act to override other laws:—

The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force or custom, usage or agreement or decree or order of a court of any other tribunal or authority.

CASE LAW

Is non obstante clause, which enables the provisions of this Act to override (1) any other law (2) custom (3) usage (4V- agreement (5) decree (6) order of a (a) Court (b) any other tribunal (c) authority, As to exclusive jurisdiction of the Special Court refer Raghavarathnam's case 1981 (1) ALT 771. Any Substantive law relating to, directly or indirectly, the Criminal liability under the Act or its gravity or the existence or non-existence of Civil Liability, which may be inconsistent, will yield to the provisions of this Act. Other non-obstantive clauses in the Act are as follows :

(1) Section 7 (5D) (is) lays down that the special Court shall follow its own procedure

and not the Code of the Civil Procedure (2) Section 7 (8D) (ii) lays down that the

offences shall be tried by the summary Procedure, as far as possible as laid down

in Sees. 263 to 265 and hence Sec. 260 and 262 of the Code of Criminal

Procedure are not applicable. (3) Section 8 (2) lays down that the liabilities under

the Act are triable by the Special Court notwithstanding (1) Code of Civil

Procedure (ii) Code of Criminal Procedure and (iii) A.P. Civil Courts Act (4)

Section 8 (2B) lays down that the Special Court shall have power to try offences

under the Act, notwithstanding the Code of Criminal Procedure.

Section 15 and Limitation Act, 1963 -Adverse possession - Provisions of Limitation Act

apply where no period of limitation therefor is prescribed under the Act. Petitioner in

possession of building constructed in 1979. Adverse possession starts to run from the

date the house is constructed upon a piece of land whichrdoes not belong to owner of

house.   Land grabbing case filed in 1994 seeking relief against petitioner and third

respondent alleging acts of land grabbing - Barred by limitation. K. V. Sreenivasa Rao vs.

The Special Court under A.P. Land Grabbing (Prohibition) Act 1982 at Hyderabad and

others: 1996 (4) ALT 844 (D.B.).

16. Power to make rules:—

(1)             The Government may, by notification, make rules for carrying
out all or any of the purposes of this Act.

(2)             Every rule made under this section shall, immediately after it is
made, be laid before each House of the State Legislature if it is
in session and if it is not in session, in the session immediately
following, for a total period of fourteen days which may be
comprised in one session, or in two successive sessions and if
before the expiration of the session in which it is so laid or the
session immediately following both Houses agree in making any

modification in the rule or in the annulment of the rule, the rule shall, from the date on which the modification or annulment is notified, have effect only in such modified form or shall stand annulled, as the case may be; so however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule. 17. Prohibition of alienation of lands grabbed:—

Any transaction relating to an alienation of a land grabbed or any part thereof by way of sale, lease, gift, exchange, settlement, surrender, usufructuary mortgage or otherwise, or any partition effected or a trust created in respect of such land, which has taken place l [whether before or after] the commencement of this Act shall, except to the extent ordered by the Special Court, or 2[Special Tribunal] be null and void.

CASE LAW

Certain transactions relating to Grabbed land are declared null and void. The transactions might be carried through wholly or partly. The specific transactions mentioned are: (1) sale (2) lease (3) gift (4) exchange (5) settlement (6) surrender (7) usufructuary mortgage (8) partition (9) trust. The Transactions that have taken place even before the commencement of the Act are declared null and void. But the special Court may order that any transaction to any extent shall be valid.

3[17-A. Review:—

The special Court may in order to prevent the miscarriage of justice review its judgment or order passed under Section 8 but no such review shall be entertained except on the ground that it was passed under a mistake of fact, ignorance of any material fact or an error apparent on the face of the record;

Provided that it shall be lawful for the Special Court to admit or reject review petitions in circulation without hearing the petitioner;

Provided further that the Special Court shall not allow any review petition and set aside its previous order or judgment without hearkig the parties affected.

CASE LAW

The Special Court was given the power to review its judgment and order. It is intended to prevent miscarriage of justice. The order Sought to be reviewed must have been passed (1) under a mistake of fact (2) ignorance of any material fact, (3) an error apparent on the face of the record. Sec. 9 of the Act clearly lays down that the consistent portions of the Code of Civil Procedure shall be applicable to the proceedings before the special Court and hence the power of review of the special Court under this section may be read with Section 114 and Order 47 of the CPC. The power of the Special Court to admit or reject review petitions without hearing the petitioner may be found to be against the principle of Audi Alteram Partem. The giving of opportunity to be heard contained in the maxim "Audi Alteram Partem" is a Principle of Natural justice and it shall be followed to arrive at a just decision, as laid down by the Supreme Court, in Smt. Maneka Gandhi vs. Union of India, AIR 1978 S.C. 597 Sec. 17-B and Schedule.

The Schedule is as much part of this Statute and is as much an enactment, as the body of the Statute. See ILR 1961 Mad. 1214 = 74 MLW 552.

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1.   Subs, for the words 'on or after' by Act 16 of 1987. 3.  Sections 17-A and 17-B inserted by Act 16 of 1987.

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2.  Ins. by ibid.

There is no doubt that the Schedules annexed to an Act And the headings under which they are placed are parts of the enactment. They are not to be taken into consideration, if the language of enactment is clear. AlthafAli vs. JamsurAli 1926 Cal 638 = 93 I.C. 909

Schedule to an enactment is part of it. In re Swaranath Bhatia AIR 1948 Mad 427 at 429.

An agreement appended to a Statute as Schedule is part of an enactment. Pacific Railway Company vs. New Westminister, 1918 P.C. 303. See also AIR 1961 All. 24 at 30. In case of inconsistency between the Schedule and the enactment, the enactment shall prevail. Muneshwara Nand vs. State, AIR 1961 All. 24 at 30. If an enacting part of the Statue is ambiguous, the schedule can be referred to on the construction of the provisions. 1931 A.C. 126.

Rules of interpretation require that ;f an enactment in a schedule, other than one merely of form, contradicts an earlier clause, it is the schedule that would prevail. Indira Bai vs. G.T.O., AIR 1962 Mad. 96.

When there is a combination of Act and Schedule, and if the Act says that the Schedule is to be used for a certain purpose then the Act and the Schedule must be read as though they are for the same purpose. One cannot refuse to give effect to clear words, simply because prima facie they seem to be limited by the Schedule and the definition of the purpose of the Schedule contained in the Act. Inland Revenue Commissioners vs. Gittus. 1920 1 K.B. 562.

In case of conflict between the body of the Act and its Schedule, the body prevails. Rahim Man/hi us. Shaik Ekhas 22 1C 690.

Section 17-Aand Code of Civil Procedure, Order 47Rule 1 -Reviewjurisdiction-Order under review must result in miscarriage of justice. "Mistake of fact" must be such that it goes to the root of the matter and must be so patent that but for such mistake the final judgment or order would not have been so rendered. Mere mistake in appreciation of evidence or an inference drawn from facts such as inference drawn on conjectures would not amount to "mistake of fact" within the meaning of Sec. 17-A. When decision was taken by the Special Court on appreciation of oral and documentary evidence, reviewjurisdiction under Sec. 17-A cannot be invoked on the ground of'mistake of fact". Grounds for review under Sec. 17-A are wider than the grounds on which reivew is allowed under Order 47 Rule 1 because even on the mistake of fact or even on ignorance of material fact, or on an error apparent on the face of the record a review is permitted. Revenue Divisional Officer vs. A. Aruna: (1998) 6 SCC 494 = 1998 (6) ALT 11 (DN SC).

Section 17-Aand Code of Civil Procedure, 1908, Order 47 Rule 1 - Reviewjurisdiction - Can be invoked by the Special Court mainly with a view to prevent miscarriage of justice. Mistake of fact alleged must go to the root of the matter. It must have a direct nexus with the ultimate order. But for it a contrary result must have followed. It must be patent but not latent - No mistake of fact when a decision was arrived on appreciation of oral and documentary evidence. View of the High Court that the majority of the members were not justified in reopening the earlier decision of the Special Court is correct. Revenue Divisional Officer and others vs. A. Aruna and others, 1999 ALT (Rev.) 102 (SC) = (1998) 6 SCC 494.

17-B, Guidelines for interpretation of Act:—

The Schedule shall constitute the guidelines for the interpretation and implementation of this Act; 18. Repeal of Ordinance 9 of 1982:—

The Andhra Pradesh Land Grabbing (Prohibition) Ordinance, 1982 is hereby repealed.

1THE SCHEDULE

The Statement of Objects and Reasons to the Andhra Pradesh Land Grabbing (Prohibition) Bill, 1982.

It has come to the notice of the Government that there are organised attempts on the part of certain lawless persons operating individually and in groups to grab either by force or by deceit or otherwise lands belonging to the Government, a local authority, a religious or charitable institution or endowment, including a wakf or any other private person. The land grabbers are forming bogus co­operative housing societies or setting up fictitious claims and indulging in large scale and unprecedented and fradulent sales of land through unscrupulous real estate dealer or otherwise in favour of certain section of people, resulting in large scale accumulation of the unaccounted wealth. As public order is also adversely affected thereby now and then by such unlawful activities of land grabbers in the State, particularly in respect of urban and urbanisable lands, it was felt necessary to arrest and curb such unlawful activities immediately by enacting a special law in that regard.

As the State Legislature was not then in session and as it was considered necessary to give effect to the above decision immediately the Andhra Pradesh Land Grabbing (Prohibition) Ordinance, 1982 was promulgated by the Governor on the 29th June, 1982.

The Bill seeks to replace the said Ordinance.,

THE STATEMENT OF OBJECTS AND REASONS TO THE A. P. LAND GRABBING (PROHIBITION (AMENDMENT) BILL, 1987

Law's delays is an undeniable fact. Matters pending in Civil and Criminal Courts take frustratingly long periods to reach finality. Matters pending in Civil Courts are delayed notoriously for long periods, even criminal cases taking long periods for disposal. The observations of Hon'ble Sri Y.V. Chandrachud, Chief Justice, Supreme Court oflndia, in In Re. The Special Courts Bill, 1978 (quoted in the footnote appended below) highlight the reality. In urban areas due to pressure on land, prices have beenconstantly soaring high, and taking advantage of this phenomenon, unscrupulous and resourceful persons backed by wealth and following occupied without any semblance of fight, vast extents of land belonging to the Government, Local authorities, Wakfs, and Charitable and Religious Endowments and evacuees and private persons. In several cases such illegal occupations were noticed in respect of lands, belonging to private individuals who are not in a position to effectively defend their possession. In many cases this is being done by organised groups loosely called "Mafia", a distinct class of economic offenders, operating in the cities of Andhra Pradesh. Unless all such cases of land grabbing are immediately detected and dealt sternly and swiftly by specially devised adjudicating forums the evil cannot subside and social injustice will continue to be perpetrated with impunity. If civil and criminal actions are dealt by two separate forums, the desired objective cannot be achieved due to procedural delays. In every case of land grabbing the person responsible is liable in tort and also for criminal action. To remedy this menas it is felt that a Special Court should be constituted with jurisdiction to determine both civil and criminal liabilities and also award sentences of imprisonment and fine in order to advance the cause of justice in the same proceeding without being driven to duplication, of litigation of course taking care of procedural fairness and natural justice.

2["The Special Court which consists of a serving or retired Judge of a High Court, District 3[Retired or Serving] Judges and serving or retired Civil Servants not below the

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1.            Schedule added by Sec. 12 of Act 16 of 1987.

2.            Subs, by A.P. Act 6 of 1988 (w.e.f. 20-6-1987).

3.            Ins. by Act 21 of 1988 (w.e.f. 20-6-1988).

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rank of District Collector will entertain only such cases in which the magnitude of the evil needs immediate eradication"! such court will avoid duplication and further the cause of justice, since under existing law, evidence given in a Civil Court cannot automatically be relied upon in a criminal proceeding.

A High powered body like the Special Court, by the very nature of its composition will be the best safeguard to guard against possible miscarriage of justice due to non-application of the existing procedural law for determination of both civil and criminal liability. The Special Court, in exercise of its judicial discretion, will decide what type of cases of alleged land grabbing it should entertain, the guidelines being the extent or the value or the location or other like circumstances of the land alleged to have been grabbed. In respect of matters in which the Special Court is not inclined to proceed with, the District Judge exercising jurisdiction over the area will constitute the Special Tribunal. The Special Tribunal shall have to follow the procedural law strictly and its jurisdiction is limited only to adjudicating civil liability.

With a view to achieving the aforesaid objective, it has been decided to amend the Andhra Pradesh Land Grabbing (Prohibition) Act, 1982 by undertaking suitable legislation.

As the Legislative Assembly of the State was not then in session and as it was considered necessary to give effect to the above decision immediately the Andhra Pradesh Land Grabbing (Prohibition) (Amendment) Ordinance, 1986 was promulgated by the Governor on the 16th September, 1986.

This Bill seeks to replace the said Ordinance

APPENDIX

*Observations of Sri Y.V. Chandrachud, Chief Justice of the Supreme Court of India, in In Re. The Special Courts Bill, 1978. (1979)1 SCC 380 at 429).

*"The congestion in courts, the mounting arrears and the easy and unconcerned dilatoriness which characterise the routine trials in our courts are well-known facts of contemporary life. They are too glaring to permit of disputation. Seminars and, symposiums are anxiously occupied in finding ways and means to solve what seems to be an intractable and frustrating problem".

NOTES ON CLAUSES

Clause 2 - Sub-section (3) of Section 1 of the Andhra Pradesh Land Grabbing (Prohibition) Act, 1982 provides for the application of the Act to all lands situated within the limits of a Municipal Corporation or Municipality and to any other land situated in such other areas as the Government may, notify. The areas comprised within a Municipal Corporation or Municipality are limited. Due to heavy influx of people from rural areas into urban areas the value of lands beyond the limits of Municipal Corporations and Municipalities has escalated enormously with the result it was felt that the area of the operation of the Act should be extended to all the urban agglomerations as defined in the Urban Land (Ceiling and Regulation) Act, 1976 and also to such other land having regard to urbanisable nature of the land. It was noticed that cases of land grabbing have been in the increase mainly in the urban agglomerations. Hence, this clause provides for application of the Andhra Pradesh Land Grabbing (Prohibition) Act, 1982 to the lands situated within the limits of the urban agglomerations in the State and also such other lands situated in such other areas as the Government may, having due regard to the urbanisable nature of land by notification apply.

Clause 3 : Land belonging to private persons.

Under Section 9, the competent authority was entrusted with the work of implementing the decision of the Special Court. The Special Court is now empowered to record convictions and award sentences and execute its orders. In view of this the definition of 'competent authority' is omitted.

Section 4 : of the principal Act, prohibits, among other things, grabbing of land belonging to private persons. The scope of "Land belonging to private persons" it was felt, should be specified so that the lands belonging to certain clauses of persons, namely, evacuees, military personnel and any other private individual also may be brought within the purview of that definition.

Special Court : Originally the District Judge having jurisdiction over the area concerned was also included as a Special Court where there is no Special Court constituted under Section 7 of the principal Act. It is felt that the Special Court should be a high powered body "presided over by a serving or retired High Court Judge and other members being two retired or serving District Judge and two persons who hold or have held a post not below the rank of a District Collector". Accordingly, it is now proposed to constitute only the Special Court. The term "Special Court" is now suitably modified.

Special Tribunal : The term "Special Tribunal" was not defined in the principal Act. Originally the intention was that where Special Court was not constituted, the District Judge having jurisdiction over the area will function as Special Court. In view of the "decision taken now to have a Special Court presided over by a retired Judge of the Supreme High Court, it was felt that the Special Court should not be burdened with all cases of land grabbing and that there should be another separate forum called "SpecialTribunal" to deal with the cases not taken cognizance of by the Special Court. The District Judge having jurisdiction over the area will constitute the Special Tribunal.

Clause 4 : As it was decided to have only one Special Court presided over by a retired Judge of the Supreme Court or a retired Chief Justice of a High Court, it is necessary to dispense with the constitution of more than one Special Court. Accordingly sub-section (1) of Section 7 of the principal Act which envisages constitution of more than one Court . is suitably amended. Sub-section (2) of Sec. 7 has been suitably modified providing for constitution of the Special Court consisting of Chairman and four other members. The Special Court, because of the very nature of its composition, is empowered to regulate its proceedings of the Act or rules to be made thereunder. Provisions is made that two members shall form the quorum for any bench of the Special Court and tha t at any sitting of any bench of the Special Court, either the Chairman or the judicial member shall preside. This will ensure decisions being taken in a just and fair manner and there will not be any miscarriage of justice. The regulations made by the Special Court are required to be notified in the Gazette and the substance thereof will have to be exhibited by way of public notice for the information of the general public and this ensures openness in procedural matters.

The Special Court is allowed to evolve its own procedure untrammelled by the existing procedural laws in order to ensure that it determines both civil and criminal liability in the same proceedings expeditiously. The procedure evolved by the Special Court should be consistent with the principles of natural justice and fair play and this is the best safeguard against arbitrariness.

In sub-section (1) of Section 7 of the principal Act, it is provided that the Government may constitute as many Special Courts as may be necessary. But as already stated in the Statement of Objects and Reasons it was decided to constitute only one Special Court invested with jurisdiction—both civil and criminal to deal with important cases of land grabbing. However, in cases where the Special Court does not entertain a petition on its being satisfied that it is not a fit case to be taken up, it is open to the petitioner to present the same before the Special Tribunal. The intention in creating one Special Court is that all cases of public importance should go before the Special Court, other cases of less importance may be referred to the Special Tribunal.

The Special Court is empowered to make regulations not inconsistent with the provisions of the Act or rules made thereunder for conducting the cases and regulating the manner of taking decisions. The regulations so made are required to be laid before the Legislative Assembly and the same are liable to be modified or annulled in the said Assembly. In order to strengthen the powers of the Special Court it is provided that a Special Court may follow its own procedure which shall not be inconsistent with the principles of natural justice and fair play in the trial of the cases and for recording convictions and awarding sentences and execution of its orders. As the Special Court has to follow its own procedure consistent with principles of natural justice and fair play, the provisions in the Code of Civil Procedure, 1908, are not made applicable to it. However,

while deciding the criminal liability, the offences punishable under the Act shall be tried in a summary way and the provisions in Sections 263 to 265 of the Code of Criminal Procedure, 1973 as far as may be, shall apply to such trial. If for any reason, the Special Tribunal comes to the conclusion that a particular case is a fit case to be tried by the Special Court, it may transfer the same to the Special Court.

The term of office of the Chairman and other members is fixed at two years.

Further the Special Court is also empowered to exercise its powers and authority through benches, the constitution of which has been specified. The Chairman is empowered to transfer cases from one bench to another.

Clause 5 : The Special Tribunal is empowered to take cognizance of cases not seized of by the Special Court. In order to avoid vexatious or frivolous litigation, the Special Tribunal is empowered to reject any case without any further enquiry if, prima facie it is of the opinion that the case is frivolous or vexatious. If any case, in the opinion of the Special Tribunal, is fit to be tried by the Special Court, the former may transfer the same recording the reasons, to the Special Court for decision. As the District Judge exercising jurisdiction over the area shall constitute the Special Tribunal, it was felt desirable that the procedural law contained in the Code of Civil Procedure, 1908 should be followed in the trial of cases. For the same reason the Special Tribunal is not invested with simultaneous jurisdiction to determine civil and criminal liability. Its jurisdiction is exclusively limited to decide civil nature of the liability.

The appellate authority over the decisions of the Special Tribunal is the Special Court and an appeal shall lie on questions of Law and fact against the judgment and orders not being interlocutory orders of the Special Tribunal.

As regards the binding nature of the decisions of the Special Tribunal, the reasoning mentioned for conferring such a power on the Special Court fully applies to the Special Tribunal also.

In order to advance the cause of justice, the Special Tribunal is empowered to mould the relief. It can award not only compensation in terms of money but also award profits accrued for the land and direct restoration of land to the rightful owner. In case compensation and profits are awarded to the Government, in order to ensure quick recovery the provisions of Revenue Recovery Act are made applicable. In other cases; where the decree holder, is not the Government the decree of the Special Tribunal will have to be executed like any other decree passed by a Civil Court. As a necessary consequence of the constitution of the Special forums for adjudicating the disputes relating to alleged acts of land grabbing, all cases pending in the Civil Courts will naturally have to go before them. The Special'Court, by reason of its composition, cannot be burdened with all the cases. It is, therefore, felt desirable that all such cases should stand transferred to the Special Tribunal exercising jurisdiction over the area and the Special Tribunal is empowered to transfer for reasons to be recorded by it any case for decision to the Special Court. In order to avoid delay in the disposal. It has been decided to fix a time limit of six months and as far as possible, within this period, the Special Tribunal shall dispose of finally every case brought before it. As the District Court is the Special Tribunal, it is conferred with the power of review like any other Civil Court exercising powers under the Code of Civil Procedure.

Clause 6 : Guidelines have been specified to enable the Special Court to take cognizance of any case, the guidelines being the location, extent or value of the land alleged to have been grabbed or of the substantial nature of the evil involved or in the interest of the justice required or any other relevant matter. In the absence of these guidelines, the Special Court will not be in a position to choose the type of cases to be dealt with by it. A procedural safeguard is also incorporated to the effect that before taking cognizance of any case the Special Court shall hear the petitioner. This will enable the petitioner to satisfy the Special Court with reference to the guidelines, if there is material, that the case is a fit case to be dealt by the Special Court.

As it was decided to confer wide jurisdiction on the Special Court to try and determine in the same proceedings, civil and criminal liability, it became necessary to incorporate

the non-obstante clause to the effect that notwithstanding anything contained in the Code of Civil Procedure, 1908 Code of Criminal Procedure, 1973 and the Andhra Pradesh Civil Courts Act, 1972, the Special Court shall have the aforesaid jurisdiction.

Having regard to the guidelines specified and after considering the submissions of the petitioner if the Special Court is of the opinion that any case brought before it is not fit to be dealt by it, it may return the same for presentation before the Special Tribunal. This will lighten the burden of the Special Court, otherwise it will be flooded with large number of cases. In order to pre-empt vexatious or frivolous litigation, power is conferred on the Special Court to reject any application filed before it without any further enquiry if in its opinion prima facie, such an application is frivolous or vexatious.

Cases which are either instituted before the Special Tribunal or stand transferred to it under sub-section (6) of Section 7A may be of such an important nature falling within the scope of the guidelines specified for determination of cases by the Special Court. All such cases may escape the attention of the Special Court. In such a contingency in the absence of adequate power being conferred on the Special Court to withdraw such cases from the file of the Special Tribunal to its file, justice will not be advanced, unless the Special Court is empowered to withdraw cases from the Special Tribunals.

When a Special Court was conceived of as a single forurn for the determination of both civil and criminal liability, it must be empowered to try all cases under the Act notwithstanding anything contained in the Code of Criminal Procedure, 1973. Hence, a non-obstante clause has been incorporated to enable the Special Court to try offences. As a consequence of conferment of the aforesaid power on the Special Court, the power to make regulations evolving its own procedure and also having regard to its power to make regulations evolving its own procedure not inconsistent with the principles of natural justice and fair play, sub-sections (3) and (5) of Section 8 of the principal Act have been omitted.

As the Special Court is invested with both civil and criminal powers, it shall determine the order in which they shall be taken up and it is within its discretion to decide whether the judgment should not be delivered until both the civil and criminal proceedings are completed. It is also provided that the evidence admitted during the criminal proceedings may be made use of while trying the civil liability and additional evidence, if any, adduced in the civil proceeding shall not be considered by the Special Court while determining the criminal liability.

The land grabbers being highly sophisticated economic offenders, rich and resourceful will naturally adopt all means and techniques to escape the liability. It is common knowledge that one of the well known methods of defeating the just claims of a decree holder is by setting up third parties in a fresh litigation alleging that the third parties were not parties to the earlier proceedings and so they were not bound by the decree. To surmount this, it was felt necessary that a notification should be issued by the Special Court specifying the factum of taking cognizance of any case under the Act so that the said notification may serve as notice to all the persons interested in the litigation and if they do not come forward within the time specified to file their objections, the finding of the Special Court will become conclusive proof regarding the fact of the land grabbing. The Custodian of the evacuee property also may object to the exercising of the jurisdiction by the Special Court in which case the Special Court will not proceed further in so far as evacuee property is concerned.

Advancement of the cause of justice is the foundation of the actions for the Special Court, Keeping this in view, it is provided that the Special Court may award compensation in respect of the wrongful possession of the land held to have been grabbed and also profits accrued from such land and the liability to make payment will be on the land grabber. The Special Court also have power to direct redelivery of the grabbed land to the rightful owner. In order to ensure swift implementation of the orders and decisions of the Special Court, it is provided that the amount of compensation and profits and the cost of redelivery shall be recovered as arrears of land revenue, in case, the Government is held to be the owner

and in other cases, they will be executed as a decree of civil court. The Special Court itself is empowered to execute the decree passed and orders made by it. In consonance with the principles of natural justice it is provided that before an order is passed by the Special Court directing the land grabber to pay compensation and other costs, he is given an opportunity to make representation.

Clause 7: The very nature of the composition of the Special court should not give any scope to any party to circumvent its decisions and orders and defeat, the just claims of the persons in whose favour the orders or decisions are given. To ensure this, it is felt that civil and criminal powers should be conferred on the Special Court.

This clause substitutes new Sections 9, 10 and 10-A in place of the present Sections 9 and 10. It is intended to reduce the rigour of burden of proof under the existing Section 10 and shifts the burden of proofs on the alleged land grabber only where there is prima facie proof that the land belongs to Government.

New Section 10-A is being inserted by this clause. The provision empowers the Chairman of the Special Court to appoint officers and other employees required to assist it in the discharge of its functions under this Act. It is provided that the rules may be made after consulting the Chairman of the Special Court in respect of salaries, allowances and other conditions and the administrative powers of the Chairman.

Clause 11 : This clause inserted new Sections 17-A and 17-B. Section 17-A confers power of review on the Special Court. Section 17-B relates to the statement of purpose. The statement of Objects and Reasons and the notes on clauses reflect the Legislative intention and the purpose for which the legislation is embarked upon. Without referring to the Statement of Objects and Reasons and the Notes on Clauses, any judicial interpretation of any of the provisions of the Act will not reflect the legislative intention precisely. Taking this into account it is felt that the Statement of Objects and Reasons and the notes on clauses should constitute guidelines for the interpretation and the implementation of the Act.

In order to enable the Special Court to render complete justice uninhibited by technicalities, wide power of review has been conferred on it. It is felt that the existing provisions in the Code of Civil Procedure, 1908 relating to power of review are not wide enough to prevent possible miscarriage of justice. With a view to preventing making review applications, a routine procedure and allowing advocates to re-argue the very same questions of fact and law, it is considered that the Special Court should be empowered to admit or reject review petitions in circulation without hearing the petitioners. But when once a review petition is admitted, the affected parties will have to be heard before a final decision is taken by the Special Court.