Gujarat High Court
Jayantilal Laxmishankar Pandya vs State Of Gujarat on 25 January, 2023
Author: A. S. Supehia
Bench: A.S. Supehia
C/SCA/18/2023 CAV JUDGMENT DATED: 25/01/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 18 of 2023
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE A.S. SUPEHIA Sd/-
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ? NO
2 To be referred to the Reporter or not ? YES
3 Whether their Lordships wish to see the fair copy
of the judgment ? NO
4 Whether this case involves a substantial question
of law as to the interpretation of the Constitution NO
of India or any order made thereunder ?
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JAYANTILAL LAXMISHANKAR PANDYA
Versus
STATE OF GUJARAT
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Appearance:
MR AMIT M BAROT(5868) for the Petitioner(s) No. 1
MR JIGAR G GADHAVI(5613) for the Petitioner(s) No. 1
for the Respondent(s) No. 2,3,4,5,6
MR JAYNEEL PARIKH, AGP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA
Date : 25/01/2023
CAV JUDGMENT
1. In the present writ petition, the petitioner is seeking quashing and setting aside of the order dated 26.11.2021 passed by the respondent no.4- Special Committee and a further direction is sought to initiate proceedings under the Gujarat Land Grabbing (Prohibition) Act, 2020 (for short "the Act") against the respondent nos.5 and 6.
Page 1 of 17 Downloaded on : Wed Jan 25 20:54:52 IST 2023C/SCA/18/2023 CAV JUDGMENT DATED: 25/01/2023 2. BRIEF FACTS:-
2.1. The dispute pertains to land falling within the revenue limits of Village Kerali, bearing Revenue Survey No.18/paiki 2. It is the case of the petitioner that the said land belongs to the petitioner. It is alleged by the petitioner that the private respondent Nos.5 and 6 are the persons, who have grabbed his land. The petitioner had therefore, made an application / complaint under the provisions of the Gujarat Land Grabbing (Prohibition) Act, 2020 (for short "the Act") before the appropriate authority.
2.2. Pursuant to his application, the Inquiry Officer (Prant Officer, Morbi) submitted his report to the respondent No.4-Special Committee recording that the proceedings under the Act could be initiated against the respondent No.5.
2.3. Thereafter, the Committee held a meeting on 02.08.2021 headed under the Chairmanship of the District Collector, Morbi and the inquiry officer was directed to submit a report with regard to the complaint / application dated 31.05.2021.
2.4. In furtherance to the aforesaid, in the meeting held on 09.08.2021, a reference was made with regard to the report submitted by the Inquiry Officer and the committee had observed that the said report is unclear and thus, the same was remanded back for a fresh inquiry to be conducted within seven days and a report with definite opinion was directed to be supplied within said seven days.
Page 2 of 17 Downloaded on : Wed Jan 25 20:54:52 IST 2023C/SCA/18/2023 CAV JUDGMENT DATED: 25/01/2023 2.5. Thereafter, an order was passed by the Chairman, Gujarat Land Grabbing Prohibition Committee, dated 21.08.2021, whereby the Prant Officer, Morbi (Inquiry Officer) was ordered to conduct a fresh inquiry and submit a report within seven days, after considering the record of the case.
2.6. Pursuant to the aforesaid order dated 21.08.2021 the respondent No.3-Prant Officer, Morbi submitted a report, whereby it was opined that the complaint cannot be registered under the provisions of the Act.
2.7. Pursuant to the aforesaid report, the respondent No.4 took a decision, whereby it was decided that proceedings under the Act be dropped against the private respondent Nos.5 and 6 making a reference to the report submitted by the Inquiry Officer (Prant Officer, Morbi).
2.8. The Chairman, Land Grabbing Special Committee had sent a communication / order dated 26.11.2021 to the petitioner, whereby the petitioner was informed that the proceedings under the Act initiated against the private respondent No.5 and 6 are dropped.
SUBMISSIONS:
3. Learned advocate Mr.Jigar Gadhvi with learned advocate Mr.Amit Barot appearing for the petitioner has made oral as well as written submissions.
3.1 It is submitted that the respondent No.4-Special Committee, while passing the impugned order has failed to consider the case of the petitioner and the material on record in proper perspective. It is submitted Page 3 of 17 Downloaded on : Wed Jan 25 20:54:52 IST 2023 C/SCA/18/2023 CAV JUDGMENT DATED: 25/01/2023 that the impugned order / decision is passed without considering the basic objective of the Act, which is to free the land from the land grabber. It is submitted that the definition of the "Land Grabbing" provided under "Section 2 (e)" of the Act clearly takes into its sweep the act / offence committed by the private respondents and prima facie the alleged act, as narrated in the complaint made by the petitioner, indicates that the act of land grabbing is committed by the respondent Nos.5 and 6. Thus, it is submitted that the complaint under the Act ought to have been registered.
3.2 Learned advocate Mr.Gadhvi has submitted that the impugned order is passed with sheer non-application of mind. It is submitted that the respondent-Special Committee had ordered the Inquiry Officer-Prant Officer, Morbi to undertake inquiry and submit a report with regard to the complaint made by the petitioner. It is submitted that the respondent- Inquiry Officer had undertaken the said exercise and had submitted a report dated 26.07.2021, which clearly opined that against the respondent No.5 the proceedings under the Act be initiated. It is submitted that the report dated 25.10.2021 submitted by the Inquiry Officer-Prant Officer, Morbi is a report, which is an outcome of the exercise of the powers done by the Inquiry Officer beyond the scope of the provision of the Act and without jurisdiction.
3.3 Learned advocate Mr.Gadhvi has submitted that Rule 6(3) of the Gujarat Land Grabbing (Prohibition) Rules, 2020 (for short "the Rules") clearly provides for the function of the Committee, which is to scrutinize the inquiry report and decide a further course of action. It is further submitted that so far as the provision under Rule 5(8) of the Rules are concerned, the same provides for the duty of the committee to consider Page 4 of 17 Downloaded on : Wed Jan 25 20:54:52 IST 2023 C/SCA/18/2023 CAV JUDGMENT DATED: 25/01/2023 the inquiry report and decide further course of action, including filing an F.I.R. within 21 days. It is submitted that this clearly reflects that the committee cannot pass orders for a fresh inquiry.
4. Per contra, learned AGP Mr.Jayneel Parikh has submitted that the writ petition is not maintainable since the petitioner is having an alternate remedy by filing an application before the Special Court under the provisions of Section 9 of the Act.
5. In response to the aforesaid submissions of the learned AGP with regard to alternative remedy, learned advocate Mr.Gadhvi has submitted that the decision taken by the Special Committee under Rule 5(8) is a final order and the same is not appealable before the Special Court defined under Section 2 (h) of the Act and constituted under Section 7 of the Act. It is submitted that in the entire Act, no express provision of appeal is provided. It is submitted that so far as the powers of the Special Court are concerned, the same are provided under Section 9 of the Act. It is submitted that it is well settled that "appeal" is a creature of statute and thus, when the specific provision with regard to appeal is not made in an Act the only remedy available is a petition under Article 226 and 227 of the Constitution of India.
5.1 It is further submitted that the Special Court's power under Section 9 (1) is to be exercised as guided by Rule 7 of the relevant Rules, which empowers the Special Court to "refer to the committee any matter of which cognizance has been taken...." and "ask for the scrutiny report from the committee as per Rule 5." Thus, it is asserted that the powers of Special Court are limited powers to refer the case to the committee and Page 5 of 17 Downloaded on : Wed Jan 25 20:54:52 IST 2023 C/SCA/18/2023 CAV JUDGMENT DATED: 25/01/2023 ask for the scrutiny report. Further, it is submitted that section 12 (a) of the Act clearly stipulates bar on registration of Information by a Police Officer without prior approval of the District Collector in consultation with the committee. Thus, it is submitted that the Special Court does not have powers to order the police officer for registration of FIR. It is submitted that even if the Special Court may refer the case to the committee and / or ask for the scrutiny report as provided under Rule 7, considering the fact that the very committee has already concluded the inquiry and has decided finally not to order proceedings under the Act and / or registration of FIR, making application before the Special Court will not be fruitful.
5.2 It is contended by learned advocate Mr.Gadhvi has submitted that the Special Court is not conferred the powers of "inquiry" expressly. It is submitted that the powers of inquiry are specifically conferred on the Special Committee and Rule 5 provides for the "Inquiry by the committee" thus, when no specific power of inquiry is conferred on the Special Court, the power of inquiry cannot be assumed and considering Rule 7, the Special Court even upon taking cognizance has to refer the case to the committee for inquiry.
5.3 Learned advocate Mr.Gadhvi has also referred to the Land Grabbing Acts of different States. It is submitted that in the Assam Land Grabbing (Prohibition) Act, 2010 the powers of inquiry are conferred on the Special Tribunal under Section 7. It is submitted that even the power of considering the appeal is conferred on the Special Tribunal under Section 13 (1) of the said Act. It is submitted that the Andhra Pradesh Land Grabbing (Prohibition) Act, 1982 the powers of appeal are provided Page 6 of 17 Downloaded on : Wed Jan 25 20:54:52 IST 2023 C/SCA/18/2023 CAV JUDGMENT DATED: 25/01/2023 under Section 7 (A) (3) to the Special Court and the Karnataka Land Grabbing Prohibition Act, 2011 provides for the powers of review under Section 17 conferred on the Special Court. Further, it is submitted that Section 17A came to be inserted after Section 17 in the year 2020 in the Karnataka Act, which provides for appeal against the order of the Special Court before the High Court. It is submitted that so far as the Gujarat Act is concerned, such specific powers of appeal against the decision of the Special Committee is not provided. It is submitted that under Section 12A provision of appeal is made wherein, an appeal can be preferred against the final judgment and order made by the Special Court before the High Court. It is submitted that, however, the said provision does not provide for an appeal against the order of the Special Committee. It is submitted that it may be noted that the other provisions of the Gujarat Act are almost similar to the provisions of the aforesaid Acts relating to offences of land grabbing. Thus, it is submitted that, when the legislature has not provided or conferred powers of appeal with the Special Court against the decision of the Special Committee consciously, such powers may not be read in the Act and therefore, the only remedy available to the petitioner is the present petition.
5.4 Learned advocate Mr.Gadhvi has submitted that the Special Court is defined under Section 2 (h) and constituted under Section 7 of the Act. The said Special Court cannot be equated with the Magistrate Court before whom a complaint under Section 200 of Criminal Procedure Code, 1973 is made. It is submitted that the Magistrate is empowered under Section 190 of Criminal Procedure Code, 1973 and the powers to take cognizance of offences are provided therein, whereas the powers of taking cognizance are provided specifically and separately under Section Page 7 of 17 Downloaded on : Wed Jan 25 20:54:52 IST 2023 C/SCA/18/2023 CAV JUDGMENT DATED: 25/01/2023 9 of the Land Grabbing Act, which is a Special Act. Further, it is submitted that as provided under Section 10 of the Act the Special Court would have powers of "Civil Court"and "the Court of Sessions" thus, the Special Court can not be considered as the Court having the powers of Magistrate as provided under Section 190 of Criminal Procedure Code, 1973, since the legislature has consciously use the term "Court of Sessions". It is submitted that it may be noted that the "Court of Sessions" is classified under Section 6 (i) and also provided under Section 9 of the Criminal Procedure Code, 1973. The classification under Section 6 (i) provides classes of Criminal Courts wherein "Courts of Session" and "Judicial Magistrates" are provided under separate classes. It is contended that the Special Court is defined and recognized under the Special Act relating to land grabbing and thus, when in the Special Act the powers conferred on the Special Court are clearly defined, no other powers as powers of the Special Court can be read from the Act.
5.5 Learned advocate Mr.Gadhvi with learned advocate Mr.Barot have submitted that the Special Act does not envisage any "criminal complaint". It only provides for application to be made to the Special Committee and / or to the Special Court. Thus, the "complaint", as defined under Section 2 (a), which means any allegation made orally or in writing to a Magistrate, with a view to his taking action under the Code cannot be considered as a term interchangeable with "application". Thus, it is submitted that the term "complaint" defined under Section 2 (d) of the Criminal Procedure Code, 1973 and the application i.e. made under the Special Act can not be considered as one and the same.
Page 8 of 17 Downloaded on : Wed Jan 25 20:54:52 IST 2023C/SCA/18/2023 CAV JUDGMENT DATED: 25/01/2023 CONCLUSION:
6. The short issue, which falls for deliberation before this Court, is that whether the petitioner has a remedy by filing an application before the Special Court under Section 9 of the Act or he can directly challenge the action of the Committee by filing the writ petition before this Court.
7. For answering the aforenoted issue, I may incorporate the relevant provision of the Act and Rules.
"SECTION 9 : Procedure and powers of Special Courts (1) The Special Court may, either suo moto or on application made by any person, or any officer authorized by District Collector, 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) Notwithstanding anything in the Code of Civil Procedure, 1908, 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, shall, subject to the provisions of this Act, be triable in the Special Court and the decision of Special Court shall be final.
(3) 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, (4) 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. (5) 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 on 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.Page 9 of 17 Downloaded on : Wed Jan 25 20:54:52 IST 2023
C/SCA/18/2023 CAV JUDGMENT DATED: 25/01/2023 (6) Every case under sub-section (1) shall be disposed off 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.
(7) 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. (8) When an offence of land grabbing is proved, 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 may be in possession of the property.
(9) 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 Jantri 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 arrear 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.
SECTION 10 : Special Court to have powers of Civil Court and the Court of Sessions.
Save as expressly provided in this Act, the provisions of the Code of Civil Procedure, 1908 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 Sessions and shall have all the powers of a Civil Court and a Court of Sessions and person conducting a prosecution before the Special Court shall be deemed to be an Assistant Public Prosecutor.
12. Notwithstanding anything contained in the Code of Criminal Procedure, 1973,-
(a) no information about the commission of an offence under this Act, shall be recorded by a police officer without the prior approval of the District Collector in consultation with the Committee notified by the Government;
THE GUJARAT LAND GRABBING (PROHIBITION) RULES, 2020 RULE 5 : Inquiry by the Committee (1) On receipt of the application, the Collector shall entrust the inquiry to the concerned Prant Officer and / or any other officer including a Police Officer as Page 10 of 17 Downloaded on : Wed Jan 25 20:54:52 IST 2023 C/SCA/18/2023 CAV JUDGMENT DATED: 25/01/2023 may be deemed fit.
(2) In case of Government Land or in case where the person who has allegedly grabbed the land is headstrong person, the collector or the State Government may take suo-moto cognizance and action shall thereafter be taken in accordance with sub-rule (3) to (10).
(3) On receipt of the application, the Prant Officer or the officer to whom the application has been referred to shall ask concerned authorities to furnish report containing all the details and permission issued by them along with relevant documents within 5 days.
(4) An inquiry shall be conducted for the prima facie locus standi of the applicant based on reports and records received from different authorities; and a conclusion to be derived whether a land title can be established. (5) An inquiry shall be conducted by the Prant Officer or the officer to whom application has been referred to, whether Land in question has been occupied or attempted to occupy, in unauthorized manner, with the use of force, threat, intimidation and deceit or by cheating, fraud and/or forgery; (6) The Prant Officer or the officer authorized by Collector shall submit the final report to the Collector within 21 days from the date of the receipt of the application. The report shall state whether prima facie case under the Act is established or not; The committee may also ask for further inquiry if it considers necessary.
(7) In case of unauthorized, continued occupancy of the land which was allotted or leased to any person by the Government with conditions attached, is cancelled by the competent authority or on the expiry of lease and renewal of application for the same is not under consideration then under such circumstances the committee may consider such act as land grabbing.
(8) The committee shall consider the inquiry report and decide further course of action including filing an FIR within 21 days.
(9) As soon as the committee directs police to file FIR, it should be filed within 7 working days.
(10) The concerned investigation officer shall file final report before the special court within 30 days from the date of First Information Report.
RULE 7 : Power of Special Court to refer Cases.
The Special Court, under section 9(1) of the Act, may refer to the committee any matter of which cognizance has been taken by the court either suo-moto or on an application made by any person to the court and ask for the scrutiny report from the committee as per Rule 5."
Section 9 of the Act prescribes a detailed procedure and powers of the Special Court formed under the Act. The section stipulates that the Special Court may either suo motu or an application made by any person can take cognizance and try every case arising out of the alleged Act of Land Grabbing or lawful possession of the land grabbed. Sub-sections (2) and (3) of section 9 of the Act mention about following its own procedure, which shall not be inconsistent with the principles of natural Page 11 of 17 Downloaded on : Wed Jan 25 20:54:52 IST 2023 C/SCA/18/2023 CAV JUDGMENT DATED: 25/01/2023 justice and fair play. Sub-section (4) of Section 9 of the Act gives the power of the Special Court to try all offences punishable under the Act. Sub-section (5) of Section 9 of the Act empowers the Special Court to determine the civil and criminal liabilities against the land grabbers to be initiated and accordingly examine the evidence adduced by the respective parties. Sub-section (6) of Section 9 of the Act prescribes for the limitation of six months to dispose of the proceedings and it is further stipulated that the Special Court may if it thinks fit, order that possession of the land, which is grabbed, and direct be restored to that person after evicting by force. Finally, Section 9 of the Act provides the Special Court to pass such order as it may deem fit to advance a cause of justice and also award compensation in terms of money for wrongful possession of the land. Section 10 of the Act prescribes the applicability of the provisions of the Code of Civil Procedure, 1908 and the Code of Criminal Procedure, 1973, in so far as they are not inconsistent with the provisions of this Act, to the proceedings before the Special Court. Section 10 of the Act further prescribes that "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 Sessions and shall have all the powers of a Civil Court and a Court of Sessions and person conducting a prosecution before the Special Court shall be deemed to be an Assistant Public Prosecutor."
Thus, the submission advanced by learned Advocate Mr.Gadhvi to the effect that the Special Court has no power to take cognizance of the offence of land grabbing since it does not have the power akin to the powers conferred to Magistrate Court under section 200 of the Code of Page 12 of 17 Downloaded on : Wed Jan 25 20:54:52 IST 2023 C/SCA/18/2023 CAV JUDGMENT DATED: 25/01/2023 Criminal Procedure, 1973 does not merit acceptance. The aforenoted powers conferred to the Special Court under section 5 read with section 10 of the Act empowers the Special Court to take cognizance of the offence of land grabbing. The petitioner cannot equate the powers of the Special Court to that of Magistrate. The Special Court is constituted under the Act for the purpose of giving effect to the provisions of the Act for the sole purpose of examining the offence of land grabbing.
Finally, Section 12 of the Act provides the remedy of an appeal against the order passed by the Special Court before the High Court.
8. The petitioner has contended before this Court that after necessary exercise is undertaken under Rule 5 of the Rules by the Committee, he has no other option, but to approach the High Court by filing the writ petition. It is submitted that the Special Court can only refer the matter to Committee and in the present case since the petitioner has filed an application directly and the Committee has already formed its opinion, the petitioner has no remedy, but to challenge the action of the Committee before this Court. The submission, which is advanced before this Court, runs contrary to the laudable objects of the Act and if such submission is accepted, the entire purpose of creating the Special Court under the Act and the procedure as mentioned in Section 9 of the Act and the powers conferred below Section 10 of the Act to the Special Court will get frustrated. The entire Act is promulgated for formation of Special Court for undertaking necessary procedure declaring a land grabber responsible for the offence of land grabbing. Such procedure is prescribed under Section 9 of the Act and further it also empowers the Special Court to restore the possession of the person, whose land is grabbed and also Page 13 of 17 Downloaded on : Wed Jan 25 20:54:52 IST 2023 C/SCA/18/2023 CAV JUDGMENT DATED: 25/01/2023 pay the award of compensation in terms of money. The provisions of Rule 7 of the Rules if are closely read, will clarify that the legislature intended that while exercising the powers of the Special Court under Section 9(1) of the Act, the Special Court "may" refer to the Committee any matter of which cognizance has been taken by the court either suo motu or an application made by any person to the court and ask for the scrutiny report from the Committee as per Rule 5 of the Rules. The word 'used' in Rule 7 of the Rules is 'may'. The powers conferred to the Committee diretly co-relates under Rule 7 to the powers of the Special Court. Section 9 of the Act begins with the expression that the Special Court may either suo motu or an "application" made by any person can take cognizance and try every case arising out of alleged act of land grabbing. Thus, the power, which is to be exercised by the Committee is subservient to the powers of Special Court.
9. Thus, merely because the Committee has opined and taken a decision on an application filed by the petitioner, the same itself cannot dilute or negate the powers of the Special Court of taking cognizance of an offence under the Act. The petitioner is seeking to establish his case against the respondent nos.5 and 6 by alleging that they have grabbed his land by assailing the report of the Committee directly before this Court. The High Court cannot by-pass the procedure and step into the shoes of the Special Court and undertake the necessary proceedings holding the respondent nos.5 and 6 responsible for land grabbing. On the contrary, the order passed by the Special Court is appealable before the High Court under the provisions of Section 12A of the Act. Any observation made by the High Court at this stage can directly affect the status of the respondent nos.5 and 6.
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10. Thus, the petitioner cannot take shelter under Rule 7 of the Rules and contend that once the scrutiny report of the Committee is available under Rule 5 of the Rules, the only remedy available to him to challenge the same before this Court and thereafter, seek a direction against the respondent nos.5 and 6, for establishing the offence of land grabbing.
11. This Court, while exercising powers under Article 226 of the Constitution of India, cannot examine the report of the Committee and hold that the respondent nos.5 and 6 are the land grabbers. If such an exercise is undertaken, the High Court by entertaining the writ petition, would be in fact exercising its appellate powers under Section 12A of the Act directly by diverting the procedure prescribed under Section 9 of the Act. On an application made by the petitioner before the Special Court alleging land grabbing by the respondent nos.5 and 6, the Special Court can still call for the report from the Committee if it "may" deem fit as per Rule 7 of the Rules and it can also without calling for the fresh report from the Committee can examine the current report and initiate the proceedings on an application or suo motu and further undertake the procedure prescribed in sub-sections of Section 9 of the Act. The Special Court is not confined by the findings of the Committee and while examining the report of the Committee, it can initiate further proceedings in an offence of land grabbing and pass necessary orders, as it may deem fit by undertaking the necessary procedure as prescribed under Section 9 of the Act. Thus, the submission of the petitioner of filing the writ petition directly challenging the decision of Committee in absence of any provision of appeal in the Act does not merit acceptance. Looking to the scheme of the Act and Rules, no provision stipulating the filing of an Page 15 of 17 Downloaded on : Wed Jan 25 20:54:52 IST 2023 C/SCA/18/2023 CAV JUDGMENT DATED: 25/01/2023 appeal against the decision of Committee is required; since the Special Court is armed with enough provisions to examine the offence of land grabbing independent of findings of the Committee. The petitioner has only to file an application alleging offence of land grabbing before the Special Court. The Special Court does not become functus officio only because the Committee has taken a decision. The Committee formed under the Rules cannot be placed at higher pedestal than the Special Court.
12. Thus, the petitioner has an alternative remedy under Section 9 of the Act to approach the Special Court by filing appropriate application of land grabbing against the respondent nos.5 and 6 even after the Committee has tendered its report. The Special Court can always, after perusing the application made by the petitioner, can initiate the procedure as prescribed under Section 9 of the Act and if it desires call for further report of the Committee. This Court by entertaining this writ petition cannot adopt the procedure, as prescribed under Section 9 of the Act merely because the Committee has rendered a report under Rule 7 of the Rules. The ultimate object of the petitioner is to evict the respondent no.5 and 6 for the alleged offence of land grabbing, which can only be examined by the Special Court on the basis of the evidence adduced before it.
13. Reliance placed by learned Advocate on the judgement of the Apex Court in the case of P.V.Hanumantha Rao (supra) is misconceived since, in the case before the Apex court, the judgement of the Special Court was assailed before the High Court, whereas in the present case, the petitioner has not approached the Special Court. Similarly, reliance Page 16 of 17 Downloaded on : Wed Jan 25 20:54:52 IST 2023 C/SCA/18/2023 CAV JUDGMENT DATED: 25/01/2023 placed on the provisions of the Assam Land Grabbing (Prohibition) Act, 2010, Andhrapradesh Land Grabbing (Prohibition)Act, 1982 and the Karnataka Land Grabbing (Prohibition) Act, 2011 are also misconceived since, the issue raised in the present writ petition is confined to filing an application before the Special Court, after the report of the Committee, and the same is required to be examined on the premise of the provisions of the Act and Rules promulgated by the State of Gujarat. The provisions of all the Acts which are referred hereinabove are almost similarly worded, and they provide analogous provisions with regard to creating a Special Court for examining the offence of land grabbing.
14. The upshot of the aforesaid discussion is that this Court cannot entertain the writ petition in wake of the detail and exhaustive procedure prescribed under Section 9 of the Act and the powers conferred to Special Court under section 10 of the Act for examining the offence of the land grabbing. The petitioner has an efficacious alternative remedy of approaching the Special Court by filing an application for the alleged offence of land grabbing committed by the private respondents.
15. Accordingly, the petition is dismissed. Rule is discharged. There shall be no order as to costs.
16. It is clarified that, all the rights and contentions of all the parties are left open.
Sd/-
(A. S. SUPEHIA, J) ABHISHEK/2 Page 17 of 17 Downloaded on : Wed Jan 25 20:54:52 IST 2023