Gauhati High Court
CRP/7/2022 on 26 October, 2022
Page No.# 1/17
GAHC010015022022
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : CRP/7/2022
PETITIONERS:
1. Jaynal Abedin, S/o Lt. Abdul Aziz, aged abt. 80 years
2. Safikaul Islam, S/o JaynalAbdin, aged abt 35 years
3. Sirajul Islam, S/o Jaynal Abedin, aged abt. 34 years,
4. Saidul Islam, S/o Jaynal Abedin, aged abt 33 years
5. Hakimul Islam, S/o Jaynal Abedin, aged abt 32 years
6. Rakibul Islam, S/o Jaynal Abedin, aged abt 30 years
7. Riajul Islam, S/o Jaynal Abedin,, aged abt 28 years
All are residents of No.2,
Dolabari, Mouza Bhairabpad, Kalibhomora.
P.S. Tezpur, Dist :Sonitpur, Assam
By Advocate :
Mr. S. Biswas
- versus -
RESPONDENT:
Shri Biki Sahu, S/o Shukhial Sahu, Resident of No.2, Dolabari, Mouza Bhairabpad, Kalibhomora.
P.S. Tezpur, Dist :Sonitpur, Assam Page No.# 2/17 By Advocate:
Mr. A. Ganguly BEFORE HON'BLE MRS. JUSTICE MARLI VANKUNG Date of hearing : 21.09.2022 Date of Judgment : 26.10.2022 J U D G ME N T & ORDER (CAV) Heard Hhhhh Heard Mr. S. Biswas, learned counsel for the petitioners along with Mr. A. Ganguly, learned counsel for the respondent.
2] This revision petition is filed under Article 227 of the Constitution of India invoking the supervisory jurisdiction of High Court for quashing and setting aside the impugned order dated 05.01.2022 passed by the Learned Special Judge, Sonitpur, Tezpur, whereby, the petition filed by the petitioners for keeping in abeyance the Land Grabbing case No. 10/2019 till disposal of T.S. No. 29/19 pending before the Learned Civil Judge, Tezpur, was rejected.
3] Brief facts of the case is that,on 30.08.2018,the instant opposite party Sri Biki Sahuon purchased a land measuring 3 Bighas out of the land of 4 bighas from Jaynal Abdin/petitioner No.1, the father of the petitioner Nos. 2 to 7, through a registered Sale Deed No. 1947. It was alleged by the opposite party that the petitioners had blocked the route which goes to the land purchased by the opposite party. Due to such obstruction the instant opposite party was unable to visit his land and had to take another route which goes through the land of others. It was Page No.# 3/17 also alleged that the present petitioners were trying to prevent the opposite party from entering into his purchased land and that their whole object was to grab his land measuring 3 bighas, hence the instant opposite party had filed the L.G. Case No. 10/2019 before the Special Court constituted under the Assam Land Grabbing (Prohibition) Act 2010.
4] The case of the instant petitioners is that the petitioners No.2 to No.7 who are the sons of Jaynal Abedin/petitioner No.1, on 16.12.2017 had executed an agreement with their father petitioner No.1 to the effect that the petitioners No. 2 to 7 paid an amount of Rs. 4, 80,000/- (Rupees four lakhs and eighty thousand) only to the petitioner No.1, in respect of the land measuring 4 bighas which included the 3 bighas purchased by the opposite party, the agreement was however not registered. The petitioners No.2 to 7 had thus filed a suit being T.S. No. 29/2019, praying for a decree for specific performance of the agreement to sale of the land on16.12.2017, for cancellation of sale deed dated 30.08.2018 executed between the opposite party and petitioner no.1 and for permanent injunction against the opposite party. The suit was registered as T.S No. 29/2019 which is pending at the stage of evidence before the learned Civil Judge, Sonitpur, Tezpur. This was all prior to the filing of the L.G. Case No. 10/2019 by the opposite party. The petitioners then filed a petition before the learned Special Court Sonitpur, Tezpur for keeping in abeyance the Land Grabbing case No. 10/2019 till disposal of T.S.No. 29/19 pending before the Learned Civil Judge, which was however rejected by the learned Special Court Sonitpur, Tezpur in the impugned order dated 05.01.2022.
Page No.# 4/17 5] The learned Special Court Sonitpur, Tezpur in the impugned order dated 05.01.2022 while rejecting the prayer of the petitioners, held that as per Section 8(4) of Assam Land Grabbing (Prohibition) Act, 2010, notwithstanding anything contained in the Code of Civil Procedure, 1908 and the Code of Criminal Procedure, 1973, any case in respect of alleged act of land grabbing or determination of questions of title and ownership to or lawful possession of, any land grabbed, under this act, shall, subject to provisions of this Act, be triable in the Special Tribunal provided that if in the opinion of Special Tribunal, any application filed before it is prima facie frivolous or vexatious, it shall reject such application without any further enquiry. That section 12 of the Act also provides that any case pending before any court or other authority immediately before coming into force of this Act which involves any act of land grabbing shall stand transferred to the Special Tribunal within whose jurisdiction the alleged grabbed land is situated. Even though section 12 is not applicable in the present case but in view of Section 8 (4) of Assam Land Grabbing (Prohibition) Act, 2010, the Title suit pending in the court of Civil Judge Sonitpur, Tezpur is required to be transferred to this court for determination as the petitioner (instant opposite party) alleges grabbing of his land in the present petition by the respondents (instant petitioners) which is subject of determination by this court. Similarly, Section 12 also provides that any case pending before any court or other authority immediately before coming into force of this Act which involves any act of land grabbing shall Even though, Section 12 is 2010, Aggrieved by this order the petitioners have filed the instant Civil Revision Petition.
Page No.# 5/17 6] Mr. S. Biswas, learned counsel for the petitioners submits that the maintainability of the application under the Assam Land Grabbing(Prohibition) Act, 2010 and the maintainability of the impugned order dated 05.01.2022 is the main point for consideration in the instant revision petition.He submits that the Assam Land Grabbing (Prohibition) Act, 2010 came into force to curb the unlawful activities of land grabbing by sections of anti-social elements in the city of Guwahati, as well as in any other parts of the State of Assam which became so common and which ultimately compelled the Government to seek redressal by way of enacting an act in the name and style of "Assam Land Grabbing (Prohibition) Act, 2010 in short "the Act of 2010". It can be seen from the preamble of the act that the main purpose of enacting the Act aforesaid is to restrain the organized attempts on the part of certain lawless persons operating individually and in groups to grab, either by force or by deceitful means or otherwise, lands whether belonging to the Government, a public sector undertaking, a local authority or any other private persons.
7] The learned counsel for the petitioners state that as per section 10 (2) of the Act of 2010, the Special Tribunal after taking cognizance of a case under sub-section 2 of section 8, shall exercise its jurisdiction in 2 (two) phases. In the first phase the Tribunal shall decide the civil liability and thereafter if the Tribunal comes to a prima-facie finding that the land in question has been grabbed, the Tribunal can proceed to a second phase by initiating a criminal proceeding by faming charge of an alleged land grabber.
Page No.# 6/17 8] The learned counsel for the petitioner submits that coming to the present case in hand, the petitioners are in continuous and uninterrupted possession of the land in dispute being the sons of the petitioner No.1. The petitioner Nos. 2 to 7 are residing inthe same plot of land by constructing Assam Type houses thereon since the last 8/9 years i.e. prior to the filing of the aforesaid land grabbing case. Therefore, the possession of the petitioner No. 2 to 7 cannot be called as illegal because of the fact that being the sons of the petitioner No.1 they have been in possession of the land in dispute without any interruption from any corner. Subsequent development as alleged to have been taken place by the respondent herein cannot per se change the status of the petitioner No. 2 to 7 over the land in dispute. Hence, the allegation of any sort of land grabbing against the present petitioners is beyond any imagination and the learned Special Tribunal is estopped from taking cognizance of the offence as alleged to have been committed by the present petitioners under the Assam Land Grabbing (Prohibition) Act, 2010.
9] The learned counsel for thepetitioner further states that from the aforesaid facts it has become clear that there is a dispute regarding execution of sale deed in favour of the present opposite party and for which a civil suit is pending in respect of the same plot of land which is alleged to have been grabbed by the present petitioners. It is stated by the petitioners that mere unauthorized possession shall not constitute (land grabbing) unless such occupation or possession is actuated by illegal acts and criminal intention comes within the definition of land grabbing. The usual civil dispute concerning the land Page No.# 7/17 relating to the possession or title cannot be a subject matter of land grabbing unless the authorized occupation or possession is associated with criminal intention.
10] The learned counsel for the petitioner further submits that the learned Special Tribunal has not taken into consideration the facts narrated above to come to a conclusion that there actually a case of land grabbing has been made out or not and whimsically call for a report merely on receipt of the application vide its order dated 16.11.2019.
11] The learned counsel for the petitioner also submits that the fact that they are in possession of the land is fortified by the report of the Circle Officer submitted on 02.01.2020. In the report it has clearly been mentioned that though the land measuring 3 bighas covered by dag No. 34 bearing patta No. 37 has been registered in the name of the present respondent opposite party but the father of the petitioners Jaynal Abedin is still in possession of the land. The facts of the case shows that the land was purchased from the instant petitioner and money received by the instant petitioner, since the instant petitioners were already in possession of the land they had block the area/portion which was already in their possession. The father of the petitioners was the actual owners of the land and only a part of the land was sold to the opposite party who filed the case before the Special Judge, Sonitpur, Tezpur. Therefore, the present petitioners being not the strangers to the disputed land and more-so-when their father is still in possession of the land in question cannot be alleged to have grabbed the land of the Page No.# 8/17 opposite party herein. Moreover, in the application filed under section 8 (2) of the Act of 2010 the applicant do not say about any act of land grabbing but he states about an apprehension of land grabbing as the passage reaching the disputed land in question has been blocked by the present petitioners.
12] The learned counsel for thepetitioner further submits that the learned Special Tribunal ought to have considered the facts involved in both the title suit being T.S. No. 29/2019 as well as L.G. Case No. 10/2009 before coming into conclusion about the commission of offence under Assam Land Grabbing(Prohibition) Act, 2010 therefore, the entire proceeding initiated under the Assam Land Grabbing (Prohibition) Act, 2010 is not sustainable having not fulfilled the condition precedent as prescribed under the Act of 2010 as well as the various provisions mentioned therein.
13] The learned counsel for the petitioner also submit that since the petitioners No. 2 to 7 already filed a title suit as stated above challenging the sale deed executed in favour of the opposite party herein, is under adjudication before the learned Civil Judge, the order of the learned Special Tribunal calling for the records of the title suit is not sustainable. The jurisdiction to be exercised by the Special Tribunal under the Assam Land Grabbing (Prohibition) Act, 2010 has to be in addition to the power given under Code of Civil Procedure and not in substitution. Therefore, the order of calling the records of the title suit has amounted to an order of non-suiting the present, petitioners which requires interference by this Hon'ble Court by exercising its supervisory Page No.# 9/17 jurisdiction 14] Mr. S. Biswas, learned counsel for the petitioner has relied the judgment of the Apex Court in the cases of Arment Craft Vs. Prakash Chand Goel reported in (2022) 4 SCC 181, Gouni Satya Reddi Vs. Govt. of A.P. & Ors. reported in (2004) 7 SCC 398, N. Srinivasa Rao Vs. Special Court the A.P. Land Grabbing (Prohibition) Act & Ors. reported in (2006) 4 SCC 214&by this Court in Anarul Hoque alias Anar Hussain Vs. Sadir Ali, in Case No.CRP No.74 of 2018 dt.27.01.2020 15] Mr. A. Ganguly, learned counsel for the opposite party on the other hand, submits that the whole case has been instituted under fraud, he goes on to say that the petitioner No.1 has 6 (six) sons petitioners No.2 to No.7 and in 2018 they had filed a Title Suit No. 29/2019, wherein the sons and father had executed an agreement which was not registered. The sons were in dispute against their father for want of possession over the land of their father,thus, it is cleared that the instant petitioners were not in possession of the land as earlier stated. The Title Suit shows that they were not in possession of the land. It is also seen that in the said Title Suit, their father was made defendant No.1 and the case was proceeded ex-parte against him. This clearly shows that this is in order to avoid the execution of the registered sale deed between the parties, the petitioners, had in collusion with their father filed the case.
16] The learned counsel for the opposite party further submits that Page No.# 10/17 under the Assam Land Grabbing (Prohibition) Act there is also the Land Grabbing Rule, 2017, under Rule 6(2) it provides that verification of application to avoid frivolous application is to be done by a person appointed by the Special Tribunal and a report is to be submitted. In this case, a report was submitted dated 02.01.2020, it can be construed that a passage block by the petitioners is a part of the land which was sold to the opposite party by the petitioners and that they had illegally grabbed this portion of land, which was no longer under their possession.
17] The learned counsel also submits that there was no irregularity on the face of the order dated 05.10.2020, the Special Judge has called for the case record of Title Suit No.29/2020 under section 24 CPC exercising its Suo Moto power. The Special Court has the jurisdiction of Civil & Criminal Jurisdiction and being a Special Court established under a Special Act and section 9 Civil Procedure Code shall stand ousted. Therefore, the Special Judge was having jurisdiction under section 24 CPC.
18] Having heard the submissions made by the learned counsels of both the parties and on perusal of the documents on record, this court find that the main issue to be looked into is whether the actions of the petitioners in blocking the route which goes to the land purchased by the opposite party and preventing the opposite party from entering into his purchased land measuring 3 bighas, would constitute the act of land grabbing under the Assam Land Grabbing (Prohibition) Act 2010. 19] The preamble of the Assam Land Grabbing (Prohibition) Act 2010 Page No.# 11/17 gives us an insight of the intention of the legislators in enacting is the Act. The preamble states that:
" Whereas there are organized attempts on the part of certain lawless persons operating individually and in groups to grab, either by force or by deceitful means or otherwise, lands whether belonging to the Government, a Public Sector Undertaking, a local authority, a religious or charitable institution or endowment, including a wakf or any other private persons or a site of historical monuments etc. ;
And, whereas it is necessary to arrest and curb immediately such unlawful activities of land grabbing;
And, whereas public order is adversely affected by such unlawful activity of land grabbers."
Thus the object of the Assam Land Grabbing(Prohibition) Act is to prevent organised attempts on part of certain lawless persons operating individually and in groups to grab either by force or by deceitful means or otherwise; lands, whether belonging to the State, a public sector undertaking, a local authority, a religious or charitable institution or endowment etc. Therefore, it appears that under the Assam Land Grabbing (Prohibition) Act, 2010, the unauthorized occupation or possession is associated with criminal intention.
20] The definition of 'land grabbing' and 'land grabber' is given in section 2 of the Assam Land Grabbing (Prohibition) Act 2010. As per Section 2 (d) and (e) "land grabber" and "land grabbing "is defined as under:
2 (d) "land grabber" means a person or a group of person who occupy or attempt to occupy with or without the use of force, threat, intimidation and deceit, land over which he or they have no ownership, title or physical possession and includes any person who gives financial aid to any person or Page No.# 12/17 group of persons for taking up illegal possession of land over which he or they have no ownership of tile and for construction of unauthorized structures thereon, or who abets the doing of any of the above mentioned acts, and also includes the successors-in-interests;
2 (e) "land grabbing" means every activity of land grabber to occupy or attempting to occupy with or without the use of force, threat, intimidation and deceit, any land (whether belonging to the Government, a Public Sector undertaking, a local authority, a religious or charitable institution or endowment, including a wakf or any other private person) over which he or they have no ownership, title or physical possession, without any lawful entitlement and with a view to illegally taking possession of such land or creating illegal taking possession of such land or creating illegal tenancies or lease or license, agreements or by constructing unauthorised structures thereon for sale or hire or use of occupation of such unauthorised structures and the term "grabbed land" shall be construed accordingly.' 21] The powers and functions of the Assam Land Grabbing (Prohibition) Act, is both civil and criminal and given in section 8 of the Act which reads as under:-
(1) Every special Tribunal shall have power to try all cases arising out of any, alleged act of land grabbing, or with respect to the ownership and title 'to, or lawful possession of theft' and grabbed whether before or after the commencement of this Act.
(2) The Special Tribunal may, either suo-moto, or on application made by any aggrieved person or any 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 i: before or, after the commencement of this Act and pass such ' :''' orders (including orders by way of interim Page No.# 13/17 directions) as it deems fit.
(3) The Special Tribunal, 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 the substantial nature of evil involved in the interest of justice required and any other relevant matter involved in the case (4) Notwithstanding anything contained in the code of civil Procedure, 1908 and the Code of criminal Procedure, 1973 any case in respect of an alleged act of land grabbing or the determination of questions title and ownership to or lawful of possession of title and ownership to or lawful possession of any grabbed land, under this Act, shall, subject to the provisions of this Act, be triable in the Special Tribunal. Provided that if in the opinion of the Special Tribunal, any application filed before it is prima facie frivolous or vexatious, it shall reject such application without any further enquiry.' 22] Section 10 of the Assam Land Grabbing (Prohibition) Act, which provides the procedure to be followed by Special Tribunal reads as under ---
"(1) Save as otherwise provided in this Act, a Special Tribunal, in the trial of case 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 this Act, which involves civil liability, follow the procedure prescribed in the Code of Civil Procedure, 1908 (Act 5 of 1908) and in the trial of cases relating to alleged offence of land grabbing involving punishment prescribed under this Act, follow the procedure of the Code of Criminal Procedure, 1973 (Act 2 of 1974).
(2) After taking cognizance of a case under sub-section (2) of Section 8, the Special Tribunal shall try and dispose of the civil liability at first and decide and pass order as to the title, ownership and lawful possession of the grabbed land whether before or after the commencement of this Act as it deems fit.
After completion of the civil proceeding, if the Special Tribunal Page No.# 14/17 decides and pass order that the land in question has been grabbed, the Special Tribunal may order that the possession of the land be restored to the person whose land has been grabbed after evicting the land grabber or any other person who may be in possession of the land, if necessary by use of such force as may be required for the purpose.
Provided that execution of the order for restoration of the possession of the grabbed land shall not be made till expiration of the period of appeal provided under Section 13 of the Act. If within a reasonable time after the expiry of the appeal period no order of stay of execution has been received from the Special Court or produced before the Special Tribunal by any of the parties to the case, the Special Tribunal shall proceed for execution of its order and simultaneously frame charge against the land grabber to prosecute him for the alleged act of land grabbing :
Provided further that in the event of preferring an appeal from the order of the Special Tribunal before the Special Court where stay of execution of the order has been made by the Special Court, the Special Tribunal shall not further proceed in the proceeding to prosecute the land grabber till final disposal of the appeal by the Special Court.
Provided also that after hearing the appeal, if the Special Court decides the appeal against the alleged land grabber, in that event charge for prosecution against the land grabber shall be framed by the Special Tribunal and proceed with the criminal proceeding for prosecution of the land grabber."
23] From the above sections it is seen that , in the first phase, the tribunal is required to decide the civil liability and once the civil liability is decided and the tribunal finds that the allegation of land grabbing is established prima facie, the tribunal may proceed to the second phase of criminal liability and try the offences after framing charge under the penal provision provided under Section 4 (2) or 5 of the Assam Land Grabbing (Prohibition) Act,2010 as the case may be. Therefore, before Page No.# 15/17 proceeding to the 2nd phase or to adjudicate the criminal liability, the tribunal is required to come to a prima facie finding, that there has been "land grabbing" and pass an order to that effect as to the title, ownership or lawful possession of the grabbed land. The tribunal enjoys the power of both the civil and criminal courts to decide the disputes with regard to the title or possession, albeit, lawful possession of the property, and to try the offence under the Assam Land Grabbing (Prohibition) Act, when there is an act of land grabbing. The tribunal shall assume the jurisdiction of the civil court and decide the title or possession only in respect of grabbed of land and not any usual civil dispute arising out of land, which falls within the domain of ordinary civil court.
24] In the instant case, the dispute is over the blocking of the route which goes to the land purchased by the opposite party preventing the opposite party from entering into his purchased land wherein the allegation is that whole object of the instant petitioners was to grab the land of the opposite party's land measuring 3 bighas. Facts of the case show that the opposite party had purchased the land from the petitioner No.1 by executing a registered sale deedon 30.08.2018, which is being challenged by the petitioners no. 2 to 7 on the ground that they had already purchased the plot of land from the petitioner no.1 on 16.12.2017 and had paid the petitioner Rs. 4,80,000/- (Rupees four lakhs and eighty thousand) only and had executed an agreement with their father petitioner No.1. That the instant petitioners no.2 to 7 had accordingly filed a title suit being T.S. No. 29/19 which is pending before the Learned Civil Judge, Tezpur, wherein the petitioner No1 has been arrayed as defendant no.1 and the instant opposite party as defendant no.2. From the above facts I find that the elements of land Page No.# 16/17 grabbing, unauthorized occupation or possession, associated with criminal intention does not appear to be present. There is a civil dispute arising out of the land between the parties and pending before the Learned Civil Judge, Tezpur and I am of the considered view that considering the nature of the dispute which is with regards to title over the disputed land, it cannot be dubbed as land grabbing case with criminal intent under the Assam Land Grabbing (Prohibition) Act, 2010 till the disposal of T.S.No. 29 of 2019.
25] A similar view was taken by a co ordinate bench of this court in Anarul Hoque Alias Anar Hussain vs. Sadir Ali in Case No. : CRP 74/2018 dated 27 January, 2020 where this court after discussing the evidence adduced by the parties before the Special Tribunal under the Assam Land Grabbing (Prohibition) Act, held that, "The evidence and pleadings of the parties clearly shows that though, the petitioners did not have title over the disputed land, possession of the petitioners, in the facts and circumstances of the case, cannot be termed as "land grabbing", reason being that there was no illegality in possessing the land or in other words, element of criminal intention was totally absent. The dispute in the present case appears to be purely civil in nature because of absence of any criminality, and therefore, in my considered view, does not come within the purview of the Land Grabbing Act, and as, such, the impugned judgment passed by the learned tribunal cannot be allowed to hold the field. Accordingly, the impugned judgment and order as well as all other order/orders, incidental thereto, are hereby set aside."
26] In view of the above discussion this Civil Revision Petition is allowed and accordingly the impugned order dated 05.01.2022 passed by the Learned Special Judge, Sonitpur, Tezpur, whereby, the petition filed by the petitioners for keeping in abeyance the Assam Land Page No.# 17/17 Grabbing case No. 10/2019 till disposal of T.S. No. 29/19 pending before the Learned Civil Judge, Tezpur was rejected, is set aside and quashed.
27] CRP No. 07 of 2022 is allowed and stands disposed.
JUDGE