Andhra HC (Pre-Telangana)
K. Narsing And Ors. vs The Special Court Under A.P. Land ... on 24 April, 1996
Equivalent citations: 1996(1)ALD(CRI)601, 1996(2)ALT884
Author: V. Rajagopala Reddy
Bench: V. Rajagopala Reddy
ORDER V. Rajagopala Reddy, J.
1. This writ petition arises out of an order dated 2-2-1994 in L.G.A. No. 40 of 1993 on the file of the 1st respondent-Special Court constituted under the Land Grabbing (Prohibition) Act, (for short, 'the Special Court'), confirming the order of the 2nd respondent - Special Tribunal - cum - District Judge, Adilabad, constituted under A.P. Land Grabbing (Prohibition) Act, (for short, 'the Special Tribunal'), dated 2-7-1993 in L.G.O.P. No. 9/89.
2. The petitioners are the appellants before the Special Court and the respondents before the Special Tribunal. The respondents approached the Special Tribunal stating that they had purchased the petition schedule property from P.W.4 under the registered sale deed dt. 12-5-1980 and that the petitioners have grabbed the suit schedule land without any right over the same. It is their case that the petition schedule property viz., plot No. 87 of 50'x30', situate at Hamidpura locality of Adilabad town, originally belonged to the Municipality of Adilabad. In 1967 the Municipality assigned the land in favour of one Narayana under Ex. A-5 and one Rajeswar, P.W.4, purchased the same under Ex. A-3 registered sale deed dt. 17-11-1973 from Narayana. The respondents in turn purchased the property from P.W.4, Rajeshwar, under sale deed dated 12-5-1980. The petitioners trespassed into the land in 1986, when the respondents were out of the town and raised some constructions. Therefore, the respondents are entitled for a declaration that the plot belongs to them and for possession. The petitioners controverted the case of the respondents asserting that the respondents had no right over the property and that it belongs to Municipality of Adilabad and the petitioners had been in possession of the land in question since 20 years and they had been paying municipal taxes for the plot and they were granted pattas in respect of the schedule property under Exs. B-1 and B-2 dated 14-12-1990 and 5-2-1992.
3. On these leadings several issues were framed by the Special Tribunal. In support of their case the respondents examined P.Ws. 1 to 5 and marked Exs. A-1 to A-5; whereas the petitioners examined R.Ws. 1 to 3 and marked Exs. B-1 and B-2.
4. Upon consideration of the evidence on record the Special Tribunal accepted the case of the respondents and rejected Exs. B-1 and B-2, filed by the petitioners, as having no evidentiary value inasmuch as they were procured long after the institution of O.P. and therefore they cannot be used for the purpose of substantiating their claim as on the date of the petition. Consequently it was held by the Special Tribunal that the Municipality having assigned the land under Ex. A-5 in favour of Narayana, it had no right to assign the same land in favour of the petitioners. The Special Tribunal held that the respondents are the owners of the scheduled property and the petitioners having been found in possession of the property without any right to the same, are declared as landgrabbers under the Act, and that the respondents were held entitled for vacant possession of the property in question. The petitioners were directed to pay the compensation of Rs. 10,000/- to the respondents for their wrongful possession and enjoyment of the property, Under Section 7-A(5) of the A.P. Land Grabbing (Prohibition) Act, (for short, 'the Act').
5. The Special Court in appeal, reapprised the entire evidence on record and by giving valid and cogent reasons confirmed the order of the Special Tribunal and dismissed the appeal.
6. It is contended by the learned counsel for the petitioners that no proper plea was raised by the respondents that the land was assigned by the Municipality and that Ex. A-5 assignment deed was not proved. This contention is factually incorrect. P.Ws. 1 and 2 have clearly stated in their evidence that the Municipality assigned the land in favour of Narayana under Ex. A-5 and that Narayana sold the land under a registered sale deed to P.W.4, who in turn sold the land to the respondents under a registered sale deed. To prove this document, they examined P.W.4, the vendor of the respondents, who stated in his evidence that Narayana, his vendor, has given Ex. A-5 when P.W.4 purchased the land from him and that in turn he has handed over the document to the respondents, when they purchased the land from him in 1967. This is an old document and nothing has been suggested to disbelieve it. The petitioners examined R.W.3, the Town Planning Officer, to prove Exs. B-1 and B-2. In his cross-examination he has stated that Ex. A-5 "might have been granted by the Municipality and that he could not identify the signature of Ex. A-5." Nothing has been suggested to him, who is an officer of the Municipality, that Ex. A-5 was a bogus document. On the other hand when the court asked him to produce the record relating to Ex. A-5, even after taking time to produce the record, he failed to do so, without giving any proper reasons. From the evidence of R.W.3 nothing has been elicited to discard Ex. A-5. However, it has to be seen that the case of the respondents hinges upon the validity of Exs. A-1 and A-3, which are sale deeds pertaining to the land in question. It is not the case of the petitioners that they had a better title than the respondents in respect of the land in question on the date of institution of the O.P. No document was filed by them to prove their title nor their possession for over 20 years. Further to prove the offence of land grabbing the respondents have only to establish that the petitioners had been in occupation and possession of the land without any lawful entitlement. Both the courts below found that the petitioners have miserably failed to show that they had no (sic. any) right over the property on the date of the institution of O.P. and that Exs. B-1 and B-2, which relate to the date subsequent to the institution of O.P., could not come to the aid of the petitioners.
7. The second and most crucial point, according to the petitioners, is that G.O. Ms. No. 1161-M.A., Housing, Municipal Administration and Urban Development Department, dt. 28-11-1981, which is marked as Ex.X-1 in the case would make it clear that till 1981 the Municipality had no power to transfer plots in favour of private persons and therefore the alleged assignment in 1967 under Ex. A-5 cannot be accepted. It is further argued that all the lands within the local limits of Municipality vest with the Government and the Municipality has to keep it under its custody and all such lands have to be disposed as per the directions of the Government. In support of his contention, he relied upon Section 37 of A.P. Municipalities Act, Section 24 of A.P. (Telangana Area) Land Revenue Act and A.P. Land Encroachment Act.
8. At the outset this contention does not strictly arise in the case, since no such plea has been taken by the petitioners in the O.P. In the absence of any plea, no evidence was available on record and no finding was sought for in this regard. A new plea cannot be permitted to be raised for the first time in a proceedings under Article 226 of the Constitution of India. If a proper plea was raised, the Municipality would have been asked to produce evidence how it got title to the property. However, there is no embargo under the above enactments for the Municipality to acquire and own any property. The Government might itself have directed the Municipality to alienate the land or the Municipality might have purchased the land from the Government. It deserves mention that the above G.O. speaks of only transfer of plots in Bhoktapur area, whereas the schedule land is situate in Hamidpura area of Adilabad Municipality. The G.O. cannot be held applicable, to the sites in Hamidpura. The contention based upon the above G.O. that till 1981 the Municipality had no power to transfer the lands is therefore baseless.
9. It is again pertinent to note that the plea of the petitioners, which can be seen from their counter, was that the land belongs to the Municipality of Adilabad. It was also not suggested to any of the witnesses that the Municipality had no power to assign the land. The petitioners therefore cannot be allowed to raise a plea at this stage that the land does not belong to the Municipality, but only to the Government. For these reasons this argument also fails.
10. The last contention of Sri Pratap Reddy, learned senior counsel for the petitioners, is that in any event this is not a case of land grabbing since the petitioners bona fide believed that they had good title for the schedule land and the mems rea that is required for establishing the offence of 'land grabbing' could not be attributed to them. We are afraid that this contention is deviod of substance.
11. Section 2(e) of the Act defines 'land grabbing' which means.
"Every activity of grabbing of any land by a person without any lawful entitlement and with a view to illegally taking possession of such lands . .... or to construct unauthorised constructions thereon...."
and that the term to 'grab land ' shall be construed accordingly. Section 10 of the Act also is relevant in this context, which is extracted as follows:
"Section 10 Burden of Proof:- Where in any proceedings under this Act, a land is alleged to have been grabbed, and such land is prima facie 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."
From a perusal of the above provisions it is clear that the offence of 'land grabbing' is complete, if, on a consideration of evidence on record it is found that the person who approached the Tribunal is 'prima facie' proved to be the land owner and that the offender is found to be in possession of such land. The Tribunal shall presume that such person is a 'land grabber'. Immediately the burden of proving that he has not grabbed the land and that he is the owner of the said land, shifts to such a person. The offence of land grabbing consists in occupying a land by a person without any lawful entitlement. In this case the respondents were found to be prima facie the true owners of the land in question. The presumption under law is that the petitioners are the land-grabbers. The burden will be discharged by the petitioners only if they establish that they are the real owners of the property. No such evidence is available on record, since Exs. B-1 and B-2, which were relied upon by the petitioners, were found to be of no use to show the tile of the property on the date of institution of the O.P. The petitioners had no lawful entitlement of the land in question at the relevant point of time. It therefore follows that the petitioners are the land-grabbers and are liable for the offence of land grabbing within the meaning of Section 2(e) of the Act.
12. The question of proof of mens rea does not arise to establish the offence of 'land grabbing'. The Legislature, in its wisdom, enacted the A.P. Land Grabbing (Prohibition) Act, 1982, constituting the offence of land grabbing if it is found a person in possession of the land without any lawful entitlement. The offence of land grabbing does not contemplate any particular mens rea in the offender. It is true that the fundamental principle of criminal law, ordinarily speaking, is that no offence can be committed if the mind of the person doing the act is innocent. There must be a wrongful intention or some blameworthy condition of mind. This principle underlying the doctrine of 'mens rea' is expressed in the familiar LATIN MAXIM ACTUS NON FACIT REUM, NISI MENS SIT REA. But there can be offences, which are on the increase in the recent times, even without mens rea. The statute itself might enact offences excluding mental condition, expressly or by necessary implication, for compelling considerations of public justice, illustratively Essential Commodities Act, Food and Drugs Act, etc. These are called offences of strict or absolute liability. The offence created under this Act is therefore, an offence where mens rea is excluded by the statute. In such circumstances the traditional concept of insisting on proof of mens rea has no place. It is true that mens rea is implied in every offence except where it is, expressly or by necessary implication, excluded by the statute. As we have already held the offence of land-grabbing does not require proof of any particular mental condition except the proof of the fact that the person is in possession of the land belonging to others. The offence is complete immediately on such a proof. The petitioners herein without having any right in the schedule property are found to be in possession of the same on the date of institution of the O.P. The question of acquiring title subsequent to institution of O.P. is of no significance for the determination of the culpability. The argument of the learned counsel is therefore liable to be rejected.
13. In view of the above facts and circumstances the writ petition fails and is accordingly dismissed, with costs.