AP Land Grabbing Act
|
|
Back
to description
Back to Acts |
THE
[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
Reserved by the Governor on
An Act to prohibit the activity of Land Grabbing in the State of
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
- - -
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
- - -
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
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
(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
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)
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:
- - -
1.
For original sub-sec. (3) subs,
by Act 16 of 1987 (w.e.f.
2.
Subs, by Act 18 of 1994 (w.e.f.
- - -
(n) 'urban agglomeration" :—
(A) in relation to any State or
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
|
State/Union territory |
Towns |
Peripheral area |
Category |
|
(D |
(2) |
(3) |
(4) |
|
Andhra Pradesh |
(1) |
Urban |
5Kms. B |
|
|
|
Agglomeration |
|
|
|
(a) |
Municipal Corporation |
|
|
|
(i) |
|
|
|
|
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) |
Municipality |
|
|
|
(ii) Gajuvaka |
(O.G. out Growth) |
|
|
|
(b) Gopalapatnam |
Panchayat |
|
|
3. |
|
Urban Agglomeration |
5 Kms. C |
|
|
(a) |
Municipality |
|
|
|
(b) Patamata |
Panchayat |
|
|
|
(c) Gunadala |
Panchayat |
|
|
4. |
|
Municipality |
1 Km. D |
|
5. |
|
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
- - -
1.
Clause (a)
omitted by Sec. 3(1) of Act 16 of 1987.
2.
Clause (cc) added by ibid.
- - -
unauthorised
structures; and the term "to grab land" shall be construed accordingly;
(f)
"notification"
means a notification published in the Andhra Pradesh
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
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 ;
- - -
1.
For Clause (i) substituted by Act No. 16 of 1987 (w.e.f.
- - -
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
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
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
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
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
Sees. 2(d)(e), 7 and 8 and Constitution of
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,
The Respondents in the
Civil Revision Petition before High Court of Andhra Pradesh filed Land Grabbing Original Petition before the
District Judge,
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
(2)
The Court reviewed the case law on the meaning of "persona designata".
Firstly
inRamachandraRaovs.
State of
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
(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
(iii) The
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
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
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
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
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.
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
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
- - -
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.
- - -
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).
- - -
(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.
- - -
1. Subs, for the words
"any Special Court" by Act XVI of 1987 (w.e.f. 16-9-86).
- - -
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.
- - -
1.
New Section 7-A inserted by Act 16 of 1987 {w.e.f: 16-9-1986).
- - -
(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).
2.
Added by
ibid.
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).
Provisos added by ibid.
- - -
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.
Hyderabad to the Registrar Special Court,
Hyderabad in ROC No. 3168/
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.
Hyderabad.
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
- - -
1.
Subs, by Sec. 7 of Act 16 of 1987.
- - -
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.
- - -
1.
Subs, by
Sec. 7 of Act 16 of 1987.
2.
Subs, by
Act 16 of 1987.
- - -
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.
- - -
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.
- - -
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
- - -
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).
- - -
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.