Andhra HC (Pre-Telangana)
19.12.2012 vs Syed Mohammed Fazalullah
Author: G. Rohini
Bench: G. Rohini
THE HON'BLE Ms. JUSTICE G. ROHINI AND THE HON'BLE SRI JUSTICE C.PRAVEEN KUMAR WRIT PETITION No.30052 OF 2012 19.12.2012 Syed Mohammed Fazalullah...Petitioner Mrs. Sameena Zahra Katoon... Respondent Counsel for the Petitioner: Sri M.V.S. Suresh Kumar Counsel for respondent: Sri A. Mahadev <GIST: >HEAD NOTE: ?Cases cited: 1 (2002) 3 SCC 258 2 2005 (2) ALD 675 (FB) ORDER:
(Per G. Rohini, J) The respondent herein filed LGC No.15 of 2012 in the Special Court constituted under the A.P. Land Grabbing (Prohibition) Act, 1982 (for short, 'the Act') against the writ petitioner alleging that he had illegally occupied the Application Schedule Property i.e., premises No.8-2-674/B/2/14 admeasuring 360 sq. yards equivalent to 302.40 sq. mts. situated at Road No.13, Banjara Hills, Hyderabad, with an intention to illegally grab the same and thus seeking eviction of the writ petitioner from the said property. After hearing both the parties, the Special Court has taken cognizance of the LGC under Section 8 (1) of the Act by order dated 30.07.2012 and aggrieved by the same, the present writ petition is filed seeking a Certiorari to call for the records relating to the said order dated 30.07.2012 and to quash the same being arbitrary and illegal.
We have heard Sri M.V.S. Suresh Kumar, the learned counsel appearing for the petitioner and Sri A. Mahadev, the learned counsel appearing for the respondents.
It is urged by Sri M.V.S. Suresh Kumar, the learned counsel for the writ petitioner that the allegations in the LGC being absolutely vague and did not attract the ingredients of "land grabbing" as required under Section 2 (d) & (e) of the Act, the Special Court ought not to have taken cognizance of the case under Section 8 (1) of the Act. It is further contended that in view of the settled law that unless the ingredients of land grabbing are made out to the satisfaction of the Special Court, mere having prima facie title by the applicant does not render the case cognizable so as to proceed under the provisions of the Act.
For proper appreciation of the contentions advanced on behalf of the petitioner, it is necessary to notice the scheme of the Act which is aimed at prohibiting the unlawful activity of land grabbing.
Section 2 (d) defines 'land grabber' and Section 2 (e) defines the expression 'land grabbing'. Section 7 of the Act provides for constitution of Special Courts 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. Section 8 of the Act prescribes the procedure and powers of the Special Courts. It empowers the Special Court either suo motu or on application to 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 the land grabbed and pass appropriate orders.
From the very language of Section 8 (1) of the Act, it is clear that the Special Court is competent to go into the question of ownership and title to of lawful possession of the land grabbed. In other words, all cases involving disputes as to the ownership and title to any land cannot be tried by the Special Court but only those cases arising out of any alleged act of land grabbing are triable by the Special Court by taking cognizance under Section 8 (1) of the Act. The expressions 'land grabber' and 'land grabbing' as defined in Sections 2 (d) & (e) respectively have been interpreted by the Supreme Court in KONDA LAKSHMANA BAPUJI v. GOVERNMENT OF A.P. AND OTHERS1 as under:
"A combined reading of clauses (d) and (e) would suggest that to bring a person within the meaning of the expression "land grabber" it must be shown that:
(i)(a) he has taken unauthorisedly, unfairly, greedily, snatched forcibly, violently or unscrupulously any land belonging to the Government or a local authority, a religious or charitable institution or endowment, including a wakf, or any other private person; (b) without any lawful entitlement; and (c) with a view to illegally taking possession of such lands, or enter 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 unauthorised structures; or (ii) he has given financial aid to any person for taking illegal possession of lands or for construction of unauthorised structures thereon; or (iii) he is collecting or attempting to collect from any occupiers of such lands rent, compensation and other charges by criminal intimidation; or (iv) he is abetting the doing of any of the abovementioned acts; or (v) that he is the successor-in-interest of any such persons."
In the above decision, it was also explained by the Supreme Court that for the purpose of taking cognizance of a case under the Act, existence of an allegation of any act of land grabbing is sine qua non and not the truth or otherwise of such an allegation.
Relying upon the ratio laid down in KONDA LAKSHMANA BAPUJI'S case (1 supra), a Full Bench of this Court in MOHD. SIDDIQ ALI KHAN v. SHAHSUN FINANCE LTD., CHENNAI2 held that unless the allegations made in the application satisfy and attract the ingredients of 'land grabber' and 'land grabbing' as provided for under Section 2 (d) & (e) of the Act, mere repetition of words 'land grabbing' would not be enough for taking cognizance of a case under Section 8 (1) of the Act. It was also explained that to make out a case that a person is a land grabber the applicant must aver and prove both the ingredients - the factum as well as the intention and that unless a person unauthorizedly and without any lawful entitlement thereto enters or intrudes into a land forcibly or otherwise he cannot be held to be a land grabber. It was further made clear that the emphasis was on taking possession without any lawful entitlement. The Full Bench in MOHD. SIDDIQ ALI KHAN'S case (2 supra) has also considered in detail the meaning of the expression taking cognizance of the case under Section 8 (1) of the Act and after reviewing the various decided cases on the subject and the provisions of Rule 6 of the A.P. Land Grabbing (Prohibition) Rules, 1988, it was held that taking cognizance of a case is not a matter of course. It was explained that registering a case and assigning number to it is a ministerial act which cannot be equated to that of taking cognizance by a Court of competent jurisdiction which requires intense application of mind to the facts. While explaining that the Special Court constituted under the Act is empowered to reject the application which is found to be devoid of any merit at the threshold, it was further held that the Special Court was required to carefully scrutinize the allegations made in the application, in order to satisfy itself that the allegations made in the application reveal and attract the ingredients of land grabbing and that mere statement or assertion that the respondents had grabbed the land was not enough.
While referring to Rule 6 of the Rules which provides that every application filed under Section 8 (1) may be referred for local inspection or verification or both by the Mandal Revenue Officer having jurisdiction over the area or by any other officer of the Government authorized by the Court in that behalf, the Full Bench held that the Special Court is required to follow the procedure under Rule 6 before taking cognizance of a case. However while drawing a distinction between the applications filed under Section 8 (1) of the Act and the cases taken cognizance of suo motu by the Special Court, it was explained that in all cases wherever the Special Court takes cognizance of a case suo motu local inspection or verification shall be after taking such suo motu cognizance by the Special Court.
In the light of the legal position noticed above, it is clear that taking cognizance of the case by the Special Court is not automatic, but it is only on application of mind to the facts of the case alleged in the LGC, the documents annexed thereto and the verification report of the Mandal Revenue Officer for the purpose of being satisfied about the ingredients of 'land grabber' and 'land grabbing' as provided under Section 2 (d) & (e) of the Act. Coming to the present case, LGC No.15 of 2012 was filed on 19.12.2011 pleading that the applicant (respondent herein) was the owner of the application schedule property having purchased the same under a Registered Sale Deed, dated 14.10.1997 from one K. Vijitha and that she had constructed a compound wall around it. It was also pleaded that she was living in Kuwait along with her husband and was occasionally visiting Hyderabad. It was alleged that on 29.8.2011 when she visited the property, it was found that the name of the writ petitioner (respondent therein) was written on the compound wall indicating that he was the owner of the property. Though she tried to contact the writ petitioner, she could not locate him as he was living elsewhere and his actual address was not available. Hence the Land Grabbing Case alleging that the respondent therein occupied the application schedule property with an intention to illegally grab the same and to deprive the applicant of her lawful rights over the said property.
The Special court referred the matter for verification by the Mandal Revenue Officer, Shaikpet Mandal and accordingly the Mandal Revenue Officer submitted a report. On the basis of the said report, the Special Court by the impugned order has taken cognizance of the case under Section 8 (1) of the Act. The said order is assailed in the present writ petition filed by the respondent in the LGC primarily on the ground that the Special Court ought not to have taken cognizance of the case since the ingredients of Section 2 (d) & (e) of the Act have not been made out even as per the report of the Mandal Revenue Officer.
Pointing out that the plot in question could not be identified on ground by the Mandal Revenue Officer and that even the house number was not tallied, it is vehemently contended by the learned counsel for the writ petitioner that no case was made out by the applicant so as to take cognizance under Section 8 (1) of the Act.
On the other hand, it is contended by the learned counsel for the respondent that inasmuch as the Special Court had rightly taken cognizance of the case on being satisfied that the allegations in the application attracted the ingredients of land grabbing, the interference by this Court is not warranted. At the outset, it would be appropriate to reproduce the report of the Mandal Revenue Officer:
".. ... ... ... ...
In this connection the matter has been got enquired and it reveals that the application schedule land is not identified on ground as there is no such premises bearing H.No.8-2-674/B/2/14 at Road No.13, Banjara Hills, Hyderabad and moreover there is no survey number/Town Survey number mentioned in the sale deed relied by the applicant and the boundaries mentioned in the application as well as in the document are also not traced in the locality. At last the Junior advocate of the Counsel for the applicant approached the office and shown the land claim by them to the Mandal Surveyor of Shaikpet Mandal, which falls in T.S.No.3/1/1, Block-S, Ward No.11 correlated Sy.No.403 part of Shaikpet village and the same forms part of D.J.H.M. Plot No.129/35/D3 and D4, which are recognized plots as per the Government Memo No.3933/Q2/74-17, Dated 06.12.1967.
.. ... ... .. ... ... ...
The ground position reveals that there is a small asbestos room of 10' x 10' size is existed in the portion of 155 sq. yards and the name of Dr. Mohd. Ishaq Ali, H. No.8-2-674/B/2/B/1/A is appearing on the wall. Whereas in the other portion of 151 sq. yards House No.8-2-674/B/2/B/1 is written on the wall. .. .."
It is evident from the report of the Mandal Revenue Officer that though no premises with House No.8-2-674/B/2/14 is existing on Road No.13, Banjara Hills, Hyderabad, the said property i.e., the land mentioned in the application schedule can be co-related to Sy.No.403 of Shaikpet Village forming part of Plot No.129/35/D3 & D4. Having carefully examined the sale deeds enclosed to the LGC, which revealed that one of the sale deeds dated 7.4.1982 was executed by none other than the son of the writ petitioner, the Special Court was convinced that the application schedule property was part of the plot recognized in favour of the writ petitioner and that the applicant had established prima facie title to the said property.
It is also relevant to note that along with his report, the Mandal Revenue Officer enclosed the location sketch and TSLR extract apart from the District Collector's order dated 18.05.2011 rejecting the NOC sought by the applicant. The rejection of NOC appears to be on the ground that the applicant is not in possession of the said land which fact supports the plea of the applicant that she was dispossessed from the property in question to which she is holding valid title. In the above said facts and circumstances, the Special Court cannot be said to have committed any error in recording a prima facie finding that the applicant was having title to the property in question. However, when we come to the contents of LGC, though it was alleged that the respondent had illegally occupied the application schedule property with an intention of illegally grabbing the same and to deprive the applicant of her lawful rights over the said property, the report of the Mandal Revenue Officer does not appear to have mentioned that the application schedule land was in possession of the respondent therein (writ petitioner). On the other hand, it was mentioned in the report that the name of one Dr. Mohd. Ishaq was appearing on the wall. It is no doubt true that the definition of land grabber is not only restricted to the party to the proceeding but also includes his predecessor-in-interest. [vide MAHALAXMI MOTORS LIMITED v. MANDAL REVENUE OFFICER (2007) 11 SCC 714]. However, the Special Court did not go into the said aspect at all and nothing was mentioned as to how the writ petitioner was concerned with the alleged land grabbing. In fact, the impugned order does not reflect even remotely the satisfaction of the Special Court about the ingredients of Section 2 (d) & (e) of the Act.
Though the Special Court has followed the procedure prescribed under the Act and the Rules made thereunder by calling for the report of the Mandal Revenue Officer and has taken the cognizance of the case on the basis of the said report, what we have found is that except recording its satisfaction as to the prima facie title of the applicant, the Special Court did not consider at all the satisfaction of the other essential ingredients of land grabbing. It is no doubt true that the Special Court at that stage is not under an obligation to consider the version of the respondent. However the Special Court is bound to record its satisfaction on the basis of the allegations made in the application and the verification report submitted by the Mandal Revenue Officer about the basic ingredients of land grabbing.
It may also be added that though for the purpose of taking cognizance it is not necessary for the Special Court to go into the truth or otherwise of the allegation of land grabbing made in the LGC, on application of mind to the allegations in the application and the verification report, the Special Court is required to satisfy itself that the allegations made in the application attracted the ingredients of land grabbing.
As held by the Full Bench in MOHD. SIDDIQ ALI KHAN'S case (2 supra) the Special Court is not entitled to try every case involving disputes as to the ownership and title to any land, but it is entitled to go into the question of ownership and title to, of lawful possession of, the land grabbed. Therefore, the Special Court is bound to record its satisfaction about the compliance with the ingredients of land grabbing also.
Since the impugned order does not reveal such satisfaction, in our considered opinion, the matter requires reconsideration by the Special Court. Accordingly, the impugned order is set aside and the matter is remanded to the Special Court for consideration afresh and pass appropriate order in accordance with law in the light of the observations made above.
The Writ Petition is accordingly allowed. No costs.
Consequently the miscellaneous petitions, if any, pending in the writ petition shall stand closed.
_________________ Justice G. Rohini _________________________ Justice C.Praveen Kumar 19.12.2012