Andhra HC (Pre-Telangana)
Hindusthan Aeronautics Employees ... vs Special Court Constituted Under A.P. ... on 7 October, 2004
Equivalent citations: AIR2005AP76, 2004(6)ALD769, 2004(6)ALT772
Author: L. Narasimha Reddy
Bench: B. Sudershan Reddy, L. Narasimha Reddy, K.C. Bhanu
JUDGMENT L. Narasimha Reddy, J.
1. A Full Bench of this Court, desired that the question involved in these writ petitions, namely, whether an attempt to grab land, falls within the definition of land grabbing, under clause (e) of Section 2 of Andhra Pradesh Land Grabbing (Prohibition) Act, 1982 (for short "the Act"), be considered by a larger Bench. The necessity was felt, on account of the conflicting views, taken by the Division Benches, in the decisions rendered in Syedulla V. Special Court under A.P. Land Grabbing (Prohibition) Act1 and Shalivahana Builders (P) Ltd. V. S.G. Co-op. Housing Society2 on the one hand, and R.Komaraiah V. Special Court, Hyd.3 and Bhavanarishi Co-operative Housing Society V. State of A.P and Other s4, on the other. In the former two cases, it was held that the definition of `land grabbing', under Section 2(e) of the Act, does not take in its fold, an attempt to grab land, and thereby, proceedings initiated, on the basis of allegations as to an attempt to grab, cannot be maintained, before Special Court or Tribunal, constituted under the Act. In the latter, a contrary view was taken, and such proceedings were held to be maintainable. The writ petitions listed before this Bench are filed, assailing the orders passed by the Special court, refusing to entertain the applications, on the ground that they are filed alleging, attempts to grab land.
2. In this batch of writ petitions, the consideration before this Bench is confined to resolution of conflict, and no adjudication is undertaken on merits, of the respective writ petitions.
3. Initially, the Governor of Andhra Pradesh, promulgated `Andhra Pradesh Land Grabbing (Prohibition) Ordinance, 1982, on 29.6.1982. The Ordinance was replaced by, Act 12 of 1982. It was enacted with an object of prohibiting the activity of land grabbing in the state of Andhra Pradesh, and to provide for matters connected therewith. The Act is made applicable only to the lands, situated within the limits of urban agglomerations, as defined in Clause (n) of Section 2 of the Urban Land (Ceiling and Regulation) Act, 1976, and Municipalities within the State. It can be extended to other areas, by a notification by the Government.
4. The terms `land grabber' and `land grabbing' are defined under clauses (d) and (e) of Section 2 of the Act.
5. The activity of land grabbing is declared as an offence, punishable under the Act, with an imprisonment, which shall not be less than six months, but may extend to five years, and with fine, which may extend to Rs.5000/-. Certain activities connected with land grabbing, are also made punishable, with the same sentence and fine. Initially, the Principal District Courts were constituted as Special Courts, and conferred with the powers under the Act, to enforce the provisions. Subsequently, amendments were effected to the Act, in the year 1987, through Act 16 of 1987 and Special Court and Special Tribunals were created.
6. For the first time, the question as to whether an attempt to grab land, can be treated as land grabbing, came to be dealt with by this Court in J.Anji Reddy Vs. Mir Ahmed Ali Khan5. A learned single Judge of this Court held that the word `land grabbing' has to be taken to mean, not only past transactions, but also continuing process of grabbing and preventing the real owner, from enjoying the properties also. This was followed by another learned single Judge, in Govt. of A.P Vs. Sathaiah6. For the first time, the question arose before a Division Bench of this Court in Syedulla's case (1 supra). After referring to the provisions of the Act, and the Rules made therein, it was held that attempts to grab land does not come within the definition of land grabbing and thereby, proceedings cannot be initiated before Special Court or Tribunal, on the basis of such allegations. In R.Komaraiah's case (3rd supra), a Division Bench of this Court opined that it is not necessary for an applicant, before the Special Court or Tribunal, who has been dispossessed, to discharge the initial burden of proof. In support of its conclusion, it placed reliance upon a decision of another Division Bench in Konda Lakshmana Bapuji Vs. Govt. of A.P7. This was followed by the same Division Bench in Bhavanarishi's case. By that time, the appeal filed by Konda Lakshman Bapuji against the judgment of this Court, was dismissed by the Supreme Court through judgment in Konda Lakshmana Bapuji Vs. Government of A.P & Others8. The Division Bench took the view that the Supreme Court, in the above case opined that, an attempt to grab land, falls within the ambit of Sections 2 (d) and (e) of the Act.
7. In the recent past, in Shalivahana Builders' case (2 supra) another Division Bench of this Court, to which one of us (B.Sudershan Reddy,J) is a party, had an occasion to deal with the purport of various decisions referred to above. On an analysis of the same, it was opined that the decisions rendered by this Court, or Supreme Court in Konda Laxman Bapuji's case (8 supra), is not an authority for the proposition that an attempt to grab land amounts to land grabbing, and that the judgment in Syedulla's case (1 supra) holds the filed. In view of this decision, the Special Court started returning the matters, wherever they were presented with allegations of an attempt to grab the land. The aggrieved parties have approached this Court by filing writ petitions.
8. Broadly speaking, the writ petitioners contend that an attempt to grab land, amounts to 'land grabbing', as defined under the Act, and thereby, proceedings can be maintained before Special Court or Tribunal. The respondents oppose this.
9. Sri K.G.Kannabhiran, learned Senior Counsel submits that the Act was enacted with an avowed object of curbing the menace of land grabbing, and a reading of statement of objects, and the provisions of the Act, makes it amply clear that the definition of land grabbing, takes in its fold, the attempts to grab, also. He lays emphasis on the expressions such as `arrest' and `curb', contained in the statement of objects, and word "Prohibit" in the preamble to the Act. Referring to the definition of `land grabber' under Section 2(d) of the Act, learned counsel submits that the various activities referred to therein, such as extending financial aid for taking illegal possession, or for construction of unauthorized structures, collection or attempt to collect rents, compensation, and other charges from any occupants of such lands, by criminal intimidation or abetment of those activities, and the tense in which the relevant expressions are used, indicate that the definition takes in its fold, the attempt to grab the land. Similarly, by drawing attention of the Court to the definition of `land grabbing' under Section 2(e)of the Act, he submits that the expression `activity of grabbing' used therein is compendious, and thereby the definition is inclusive in nature, taking in its fold, the attempts also. He places reliance upon the words `any activity connected with' appearing in Section 3 of the Act, and submits that apart from land grabbing, ancillary activities, including attempt, is punishable under the Act. For this, he derives support from Section 5 of the Act, which deals with the activities, ancillary to land grabbing.
10. Learned Senior Counsel further submits that conferment of power on the Special Courts and Tribunals, to grant interim directions, is suggestive of existence of jurisdiction in them to deal with the attempts also and to grant preventive reliefs, in the form of temporary or perpetual injunctions. He contends that exclusion of jurisdiction of other Courts, under Section 8(2) of the Act, in relation to the matters covered by the Act, is a factor, which leads to the conclusion that wherever the allegations of land grabbing are present, the jurisdiction of ordinary civil Courts is excluded, even to grant of preventive relief, and if an attempt to grab land is not treated as a jurisdictional factor, under the Act, the aggrieved persons would be left without any remedy. Learned Senior counsel draws attention of this Court to certain passages in the book "Principles of Interpretation", authored by G.P.Singh in support of his contention that historical factors that lead to enactment of a legislation, the mischief that is sought to be remedied have to be taken into account, while interpreting the provisions of such enactment. Distinguishing the word `act' from `activity', learned counsel submits that the latter expression used in the definition of the term `land grabbing' under Section 2(e), widens its scope, and takes in its fold `attempt' also. Similarly, he has referred to various expressions such as `arising out of' used in Section 8(1) of the Act. He places reliance upon several judgments, mostly rendered by Supreme Court, to support his contention.
11. Sri K.Ramakrishna Reddy, learned Senior Counsel submits that the object of the enactment is to arrest the menace of land grabbing and to insist that the machinery under the Act, can be set in motion, only after the activity is completed, would defeat the purpose. In addition to analyzing the definition under Sections 2(d) and (e) of the Act, he lays stress upon the expression `land grabbing in any form', used in Section 3 of the Act. According to him, land grabbing is not only confined to the stage, where a person, accused of being a land grabber, accomplished it, but also to the attempts made anterior to such final act. Highlighting the language used in Section 4, as well as the use of expression `with a view to grab land' in Section 5 of the Act, learned Senior Counsel submits that they lead to the conclusion that apart from actual land grabbing, attempts as well as other preparatory acts are prohibited, and made punishable.
12. Learned Senior Counsel points out that Section 7-A in relation to Tribunals and Section 8 in relation to Special Courts, enable them to take cognizance of every case, "arising out of an alleged act of land grabbing", and that the object of using such expression, is to enable the Court or Tribunal to take cognizance of even attempts to grab the land. He submits that the guiding factor for the Special Court or Tribunal, in passing orders under the Act, is the cause of justice, and such an object can be achieved, if only attempts to grab land are curbed. Extensive reference is made to Section 17-B and the schedule to the Act, to drive home the point that the emphasis under the Act is to arrest and curb the activity of land grabbing of all forms. He too has placed reliance upon the judgment rendered by Supreme Court as well as this Court, in support of his contention.
13. Learned Advocate General, appearing for the State has appraised the Court, of the salient features of the Act, and the object of legislature to curb the menace of land grabbing. He submits that the various expressions used throughout the Act, and the scheme framed in it, hardly leave any doubt that the jurisdiction of the Special Courts and Tribunals is not confined to instances where the land grabbing has already taken place. He submits that if any doubt is left in this regard, it is clarified in the statement of objects comprised in the Schedule, which is made part of the Act, by virtue of Section 17-B.
14. Sri P.Sri Raghuram, learned counsel has adopted the arguments of the two learned senior counsel referred to above. In addition, he submits that the possession of land in dispute is never treated as a criterion for conferring jurisdiction on the Special Court or Tribunal or for taking cognizance of the matters under the Act. For this purpose, he relies upon a text of Section 1-A of Section 8 of the Act.
15. Sri K.Raghuveer Reddy, learned counsel has adopted the arguments advanced by both the learned senior counsel, and in addition, submits that it is never a criterion under the Act, that the alleged land grabber be in possession of the land in question.
16. An opposite point of view is projected by the contesting respondents. Sri E.Manohar, learned Senior Counsel submits that the Act is clear in its object, in constituting `land grabbing' as an offence, and an attempt to grab land is not treated as an offence under it. He submits that the legislature has not chosen to treat the attempt to grab land as an offence, and the definition of the term `land grabbing' cannot be expanded through interpretation. He submits that when there is no ambiguity in the definitions, or expressions used in various parts of the Act and the necessity to refer to preamble, or for that matter, the statement of objects, does not arise. He contends that the power conferred on the Special Court or Tribunal to grant interim orders, does not enable them to entertain proceedings, which are otherwise not maintainable, under the provisions of the Act. He submits that an ancillary power does not enable the Courts to create a new head of offence.
17. Referring to Section 10 of the Act, learned counsel submits that, the Act places burden upon a person accused of land grabbing, to establish that he did not grab the land in question, and the activity of attempt to grab land does not fit into the provision. In reply to the contentions advanced on behalf of the petitioners, based on the expressions used in Sections 3, 4 and 5 of the Act, learned counsel submits that various instances made therein are in relation to an activity of land grabbing, which has already taken place, and not to any stage anterior thereto. He too has analyzed the provisions of the Act, and cited several decisions rendered by this Court and Supreme Court, in support of his contention. He submits that the Supreme Court, in Konda Lakshmana Bapuji's case (8 supra) did not hold that an attempt to grab land constitutes land grabbing and that on the other hand, indication is to the contrary.
18. Sri E.Ayyapu Reddy, learned senior counsel submits that any penal provision has to be interpreted strictly, and unless an act or omission is legally defined as an offence, an individual cannot be held guilty, by expanding the definition, by way of interpretation. He submits that the definition of crimes under Sections 4 and 5 of the Act are in presenti, and they do not take in their fold, the attempts, preparation, or intention preceding such acts. According to him, it is the prerogative of the legislature to constitute any acts or omissions as an offences, and once it has chosen to legislate in a particular manner, new heads of crimes or offences cannot be brought about, otherwise than through legislation, howsoever desirable it may be. He contends that while Section 4 of the Act deals with the main offence, Section 5 deals with accomplices, abettors in grabbing land, and there is no indication in any of the provisions, that an attempt to grab land, is also an offence.
19. Learned counsel further submits that Sections 7-A and 8 of the Act, which enable a Special Tribunal or the Court, as the case may be, to take cognizance, do not speak of an attempt to grab land. He has drawn our attention to the Rules framed under the Act, and the forms prescribed therein, and submits that the activity of attempt to grab land does not fit into the scheme contained in them. He also submits that the nature of relief provided for, under Section 7-A or 8 of the Act, is restricted to grant of compensation and re-delivery of the grabbed land, and no relief is provided in relation to any attempt to grab the land. He submits that any attempts to grab land, can certainly be dealt with, under relevant provisions of various enactments, such as Section 145 of Criminal Procedure Code, Section 83 of A.P. Religious and Endowments Act, etc.
20. Sri S.Niranjan Reddy, learned counsel has supplemented the argument advanced by learned senior counsel. He submits that the scope of the Act is limited, and is confined to dealing with the activities of land grabbing as and when they take place. He submits that it is not as if the activity of land grabbing was not lawful before the Act was brought about. Contradicting the assertion of the petitioners that they would be without any remedy, if preventive relief is not granted under the Act, he submits that the Special Court and Tribunal can take cognizance of those cases, where civil and criminal liability arises, consequent on grabbing of land and that the jurisdiction of Civil Courts to deal with the cases, where the owner of the land apprehends acts of grabbing is still in tact, to entertain suits for perpetual injunction.
21. Sri Vedula Venkata Ramana, learned counsel submits that accepting the contention of the writ petitioners would lead to disastrous consequences. He submits that the civil Courts would be denuded of their jurisdiction to entertain suits for perpetual injunction in relation to such lands, once it is alleged that there is an attempt tograb land. He made certain other submissions also.
22. Before dealing with the submissions made by learned counsel for the parties, it is relevant, and beneficial to take note of the provisions and schemes of the Act, as well as cognate principles of law, within the permissible limits of brevity.
23. The Act purports to prohibit the activity of land grabbing as is evident from its preamble. It is made applicable to the urban agglomerations, under the Urban Land (Ceiling and Regulation) Act, 1976, and the municipalities within the state. The State Government is empowered to extend the Act to more areas, by issuing a Notification taking the criteria laid down in sub-section 3-A of Section 1 of the Act, in to account. The expressions `land grabber' and `land grabbing' are defined as under: -
(d) "land grabber" means a person or a group of persons who commits land grabbing and includes any person who gives financial aid to any person for taking illegal possession of lands or for construction of unauthorized structures thereon, or who collects or attempts to collect from any occupiers of such lands rent, compensation and other charges by criminal intimidation, or who abets the doing of any of the above mentioned acts; and also includes the successors in interest;
(e) "land grabbing" means every activity of grabbing of any land (whether belonging to the Government, a local authority, a religious or charitable institution or endowment, including a wakf, or any other private person) by a person or group of persons, without any lawful entitlement and with a view to illegally taking possession of such lands, or enter into or create illegal tenancies or lease and licences agreements or any other illegal agreements in respect of such lands, or to construct unauthorized 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 unauthorized structures; and the term "to grab land" shall be construed accordingly;
24. The activity of land grabbing is made punishable under Section 3, and Sections 4 and 5 prescribe the punishment for land grabbing and other related activities. It is essential to extract those provisions also.
"Section 3: Land Grabbing to be unlawful: -
Land grabbing in any form is hereby declared unlawful; and any activity connected with or arising out of land grabbing shall be an offence punishable under this Act.
Section 4.
Prohibition of land grabbing: - (1) No person shall commit or cause to be committed land grabbing.
(2) Any person who, on or after the commencement of this Act, continues to be in occupation, otherwise than as a lawful tenant, of a grabbed land belonging to the Government, local authority, religious or charitable institution or endowment including a wakf, or other private person, shall be guilty of an offence under this Act.
(3) Whoever contravenes the provisions of sub-section (1) or sub-section (2) shall on conviction, be punished with imprisonment for a term which shall not be less than six months but which may extend to five years, and with fine which may extend to five thousand rupees.
Section 5 Penalty for other offences in connection with land grabbing: -
Whoever, with a view to grabbing land in contravention of the provisions of this Act, or in connection with any such land grabbing,--
(a) sells or allots, or offers or advertises for sale or allotment, or has in his possession for the purpose of sale or allotment any land grabbed;
(b) instigates or incites any person to commit land grabbing;
(c) uses any land grabbed or causes or permits knowingly to be used for purposes, connected with sale or allotment, or
(d) causes or procures or attempts to procure any person to do any of above mentioned acts, shall, on conviction, be punished with imprisonment for a term which shall not be less than six months but which may extend to five years and with fine which may extend to five thousand rupees".
25. To enforce the provisions of the Act, constitution of Special Court is provided for, under Section 7 of the Act. Such Court is to function at the State level. The procedure to be followed, and the powers to be exercised by Special Court is stipulated under Section 8 of the Act. It is conferred with the power to determine the civil and criminal liability against persons, accused of grabbing the land. Under Section 9 of the Act, it is conferred with the powers of Civil Court and the Court of Session, under the relevant provisions of Civil Procedure Code (C.P.C) and A.P. Civil Courts Act, and Criminal Procedure Code (Cr.P.C) respectively. The corresponding provisions of Code of Civil Procedure, and Code of Criminal Procedure are saved, to pave the way for exercise of such powers by the Special Court. Section 2-C of Section 8 reads as under: -
"(2-C) The Special Court shall determine the order in which the civil and criminal liability against a land grabber be initiated. It shall be within the discretion of the Special Court whether or not to deliver its decision or order until both civil and criminal proceedings are completed. The evidence admitted during the criminal proceedings may be made use of while trying the civil liability. But additional evidence, if any, adduced in the civil proceedings shall not be considered by the Special Court while determining the criminal liability. Any person accused of land grabbing or the abetment thereof before the Special Court shall be a competent witness for the defence and may give evidence or oath in disproof of the charge made against him or any person charged together with him in the criminal proceeding:
Provided that he shall not be called as a witness except on his own request in writing or his failure to give evidence shall be made the subject of any comment by any of the parties or the Special Court or give rise to any presumption against himself or any person charged together with him at the same proceeding".
Sub-section (7) of Section 8 of the Act, provides for, the nature of relief that may be granted by the Special Court.
26. The Special Court is conferred with original as well as appellate powers. It is empowered to entertain matters at the first instance or to withdraw proceedings that are already pending before Special Tribunals, depending on the importance of the subject matter. Appeals are provided to it against the orders passed by Special Tribunal.
27. Special Tribunal (for short "the Tribunal") is defined under Section 2(I-b) to mean `the Court of the District Judge having jurisdiction over the area concerned and includes Chief Judge, City Civil Court, Hyderabad'. Section 7-A of the Act delineates the procedure to be followed and the powers to be exercised by the Tribunals. The Tribunals are empowered to grant civil remedy in the same manner as Special Court, but they are not conferred with the power to punish and award sentences against the persons found guilty. For this purpose, a mechanism is provided for, under Sections 11 and 12 of the Act. It is to the effect that on a sanction accorded by Special Tribunal, the Magistrate of First Class, specially empowered by the Government, in this behalf, shall be entitled to punish the offenders. It is stated that so far, no Magistrate of First Class has been specially empowered in this regard, under Section 11 of the Act.
28. Another significant feature of the Act is, as regards the burden of proof. Section 10 of the Act provides for a rebuttable presumption identical to the one under Section 4(2)of the Evidence Act, to the effect that the land which is the subject matter of the proceedings is grabbed, and requires the person accused of being a land grabber, to disprove the allegation against him. The Section reads as under: -
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".
29. Section 15 of the Act has conferred overriding effect on the provisions of the Act, over any other law inconsistent, with them. One typical feature is that Section 17-B mandates that the Schedule, comprising of the statement of objects and reasons, contained in the bill introduced in 1982, and those in the amendment bill of 1987 shall constitute the guidelines for interpretation and implementation of the Act.
30. The Act partakes the character of a Penal, Civil and procedural laws. Penal, for the reason that, it provides for punishment of imprisonment and fine for the wrongs defined in it. Civil because, it provides for the remedies, such as, restoration of possession and award of compensation and mesne profits; and procedural, on account of the fact that, altogether a different procedure is prescribed under the Act, for adjudication of the matters before Special Courts and Tribunals.
31. It brought about a rare phenomenon, where same Forum is empowered to discharge the functions of a Civil as well as a Criminal Court. The Act endeavors to maintain unity of these diverse aspects up to a stage in the proceedings and permit the dichotomy to manifest itself at a later stage. This has become necessary for the reason that the parameters for punishing a citizen for an offence are different from those for granting a remedy in civil law, against him. The principles touching on degree of proof, limitation, nature of interpretations to be placed on the respective provisions have their own bearing in the matter. As aptly observed by a scholar, the primary purpose of (Criminal Law) sentencing is to deal with the offender, not to provide a remedy for the victim, although the victim may be considered and consulted; whereas the primary purpose of civil law is to provide an innocent party, with the remedy (see Modern Law Review July, 2001). Thus the focus in criminal proceedings will be to punish the accused, whereas, the one in civil proceedings, would be to grant relief to the plaintiff. It is, by no means, an easy task to maintain a perfect balance between these two different, though not opposite phenomenon. So much about the Act.
32. One important aspect to be noted is that, the legislature, particularly in democratic form of Governments, is the ultimate custodian of the interests of the citizens, which it represents. It has the exclusive prerogative, to bring about legislations providing for such matters as are necessary, to protect the interests of its constituency, at large. As long as the legislation is within the framework of the Constitution, it has full freedom to recognize any acts or omissions, as wrongs and to provide for measures to contain the identified wrongs. Such measures may include incentives for those, who abide by the legislation so brought about, or punishment to those who violate it. It is impermissible to fathom the legislative measures, with the yardsticks of common sense, morality, logic etc. In the words of one of the celebrated American jurist, Learned Hand: -
" The only way in which the right, or the wrong, of the matter may be shown, is by experiment; and the legislature, with its paraphernalia of committee and commission, is the only public representative really fitted to experiment... the legislature, though less courageous because it is less independent, is more genuinely representative".
33. The extent to which, this freedom or prerogative of legislation, can be meddled with by the Courts, was aptly stated by Justice Oliver Wendell Holmes in his off-quoted judgment in Otis V. Parker9, as under: -
" ............While the Courts must exercise a judgment of their own, it by no means is true that every law is void which may seem to the judges who pass upon it excessive, unsuited to its ostensible end, or based upon conceptions of morality with which they disagree. Considerable latitude must be allowed for differences of view, as well as for possible peculiar conditions which this Court can know but imperfectly, if at all".
He added;
"If the State thinks that an admitted evil cannot be prevented except by prohibiting a calling or transaction not in itself necessarily objectionable, the Courts cannot interfere, unless, in looking at the substance of the matter, they can see that it "is a clear, unmistakable infringement of rights secured by the fundamental law"
34. One more concept, which is worth being taken note of is that the Court should endeavor to interpret provisions of an Act in such a way as to advance the objects of the legislation. The doctrine stated centuries ago in Hydon's10 case, that, the Court while construing the provisions of a legislation has to ascertain I) what was the law before the making of the Act ii) what was the mischief or defect for which the law did not provide iii) what is the remedy that the Act has provided, and iv) what is the reason of the remedy; stood strongly implanted in the Indian Jurisprudence also. (See) and Dr. Waterm Watiman Waman Hiray V. Mr. Justice Lentin, At the same time, it has to be borne in mind that the provisions of a penal or fiscal statute should receive strict construction. No punishable wrong can be coined and no additional fiscal liability can be imposed solely by way of interpretation of a provision. This aspect would be dealt with in detail at a later stage.
35. Reverting to the facts of the case, it is essential to identify the origin, which gave raise to difference of opinion. For the first time, an attempt to grab land was treated as forming part of land grabbing in J.Anji Reddy's case (5 supra) by a learned single Judge of this Court. It was followed by another learned single Judge in Sathaiah's case (6 supra) In R.Komaraiah's case (3 supra) heard by a Division Bench, the question did not fall directly for consideration, for the reason that the subject land in that was 'grabbed' and the proceedings were initiated before Special Court for declaration of title and recovery of possession. (para 2 of the judgment). The discussion therein, particularly, in para 13 centered around the expression `alleged act of land grabbing' and not `attempts to grab land'. The dispute was, whether in the light of the plea put forward by the petitoner therein as to title to the land, it can be said that the land was grabbed. Placing reliance upon the judgment rendered by a Division Bench of this Court in Konda Lakshmana Bapuji Vs. Government of A.P.Hyd.11, it was held that once there is an allegation that the land was grabbed, the burden under Section 10 of the Act, shifts to the accused and the proceedings can be maintained in the Special Court.
36. As observed in the preceding paragraphs, in Syedulla's case (1 supra), the question as to the maintainability of the proceedings before Special Court or Tribunal, on the allegations of attempt to grab land, was pointedly discussed and it was held that `attempt to grab land' does not amount to `land grabbing'. This decision was cited before a Division Bench, which heard Bhavanarishi's case (4 supra). In that case, the Division Bench held that an attempt to grab land falls within the ambit of Sections 2(d) and (e) of the Act. However, in coming to that conclusion, it solely relied upon a judgment of the Supreme Court in Konda Lakshmana Bapuji's case (8 supra). The relevant portion of the judgment reads as under: -
"In a latest decision of the Supreme Court reported in Konda Lakshmana Bapuji V. Govt. of A.P., the Apex Court opined that ` an attempt to grab' the land also falls within the ambit of Section 2(d) and (e) of the Act, and therefore, the Special Court or the Special Tribunal have got jurisdiction to entertain a complaint, filed under Section 8(1) of the Act".
37. A reading of this passage discloses that the Bench proceeded on the basis that the question involved in Syedulla's case on one hand and R.Komaraiah's case, on the other are same, and that it was held by Supreme Court in Kondalakshamana Bapuji's case that attempt to grab land falls within the ambit of Sections 2(d) and (e) of the Act.
38. As for the first observation, it may be noted that the facts in Syeudlla's case on one hand and R.Komaraiah's case on the other were radically different from the context of maintainability of proceedings based on the allegations of attempt to grab land. In Syedulla's case (1 supra), proceedings were initiated on the basis of an attempt to grab land, whereas in R.Komaraiah's case(3 supra) the land was undisputedly in the possession of the alleged land grabber. While in the former, the question was squarely framed as to the maintainability of proceedings on the basis of allegations of attempts to grab land; in the latter, the controversy was as to whether the acts alleged can be treated as grabbing in the light of serious dispute to title. There was no occasion for there being any conflict of opinion, in those two cases.
39. Now, it remains to be seen as to whether the Supreme Court in Konda Lakshamana Bapuji's case (8 supra) held that an attempt to grab land falls within the ambit of Section 2(d) and (e) of the Act. Here again, it may be pointed out that in Konda Lakshamana Bapuji's case, the allegation was not as to an attempt to grab land. In fact, proceedings were initiated to recover possession of the land from a person, who undisputedly was in enjoyment of the land for about half a century. Recovery was ordered from him on the ground that he did not hold lawful entitlement to possess the land. The Supreme Court untook extensive discussion, touching both the scheme of the Act, and the merits of the matter. Speaking for the Bench, Justice S.S.M.Quadri had analyzed entire Act. His Lordship took the assistance of several dictionaries in ascertaining the meaning of the word `grabbing', since it was not defined under the Act. The discussion as to the purport of the provisions of the Act was summed up in paragraphs 34 and 35 as under: -
Para 34: "The various meanings, noted above, disclose that the term "grab" has a broad meaning- to take unauthorisedly, greedily or unfairly- and a narrow meaning of snatching forcibly or violently or by unscrupulous means. Having regard to the object of the Act and the various provisions employing that term, we are of the view that the term "grab" is used in the Act in both its narrow as well as broad meanings. Thus understood, the ingredients of the expression " land grabbing" would comprise of (i) the factum of an activity of taking possession of any land forcibly, violently, unscrupulously, unfairly or greedily without any lawful entitlement and (ii) the means of real intention - with the intention of /with a view to" (a) illegally taking possession of such lands or (b) enter into or create illegal tenancies, lease and licences agreements or any other legal agreements in respect of such lands; or (c) to construct unauthorized structures thereon for sale or hire; or (d) to give such lands to any person on (i) rental or (ii) lease and licence basis for construction, or (iii) use and occupation of unauthorized structures.
Para 35. 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 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 licences agreements or any other illegal agreements in respect of such lands or to construct unauthorized structures thereon for sale or hire, or givesuch lands to any person on rental or lease and licence basis for construction, or use and occupation of unauthorized structures; or (ii) he has given financial aid to any person for taking illegal possession of land or for construction of unauthorized structures thereon; or (iii) he is collecting or attempting to collect from any occupant of such lands rent, compensation and other charges by criminal intimidation ; or (iv) he is abetting the doing of any of the above mentioned acts; or (v) that he is the scuccessor-in-interest of any such persons."
40. A reading of the above paragraphs discloses that to invoke the provisions of the Act, it must be shown and established that the person accused of the offence under the Act, has taken un-authorisedly, greedily, snatched forcibly, violently, unscrupulously, any land, whether belonging to Government, local authority, statutory agencies or private individuals, and that such act is without any lawful entitlement and with a view to undertake various objectionable activities referred to in the Act.
41. The predominant factor is that possession through unauthorized and objectionable means has been taken and that there does not exist any lawful entitlement in favour of the person who has taken such possession. The judgment does not at all suggest that attempts to take such possession, amounts to land grabbing.
42. Much emphasis is laid by the learned counsel for the petitioners on Para 36 of the judgment to contend that the allegation of an act of land grabbing was recognized as a basis for taking cognizance and thereby attempts to grab land stand recognized for the same purpose. Para 36 of the Judgment, reads as under:-
"It must be borne in mind that for purposes of taking cognizance of a case under the Act, existence of an allegation of any act of land grabbing is the sine qua non and not the truth or otherwise of such an allegation. But to hold that a person is a land grabber, it is necessary to find that the allegations satisfying the requirements of land grabbing are proved".
43. A plain reading of the same makes it clear that the observation was made in the context of maintaining the distinction between mere allegation and proof; It hardly needs any emphasis that the basis for taking cognizance of any offence is an allegation; and proof emerges on completion of the trial. Reference to "an allegation of any act of land grabbing" as constituting basis for taking cognizance has no greater significance than, describing the person, as `accused' of land grabbing. Therefore, it is difficult to discern that the term `allegation' is to be viewed different from the actual act alleged to have been committed. The use of the word `allegation' or its cognate expression elsewhere in the Act is only to connote stage of the proceedings. It is warranted because, no person can be branded as a 'land grabber' even at the stage of taking cognizance. The legislature could have avoided this controversy to a large extent, by using well-recognized terms such as `accused' at the relevant places. However, the usage of the word `alleged' at various places before the expression `land grabbing' does not equate `attempt to grab land' to 'land grabbing'.
44. It was in this context that another Division Bench of this Court, in Shalivahana Builders case (2nd supra) held that the Supreme Court did not hold in Konda Lakshmana Bapuji's case that attempt to grab amounts to grabbing itself. Para 35 of the same reads as under: -
"In the whole of the judgment it is nowhere stated that an attempt to grab land also falls within the ambit of Section 2(d) and (e) of the Act and, therefore, the Special Court or the Special Tribunal have got jurisdiction to entertain a complaint filed under Section 8(1) or under Section 7-A (1) of the Act, as the case may be.
45. Further, recently, in its judgment in State of A.P Vs. P.V.Hanumantha Rao12, the Supreme Court gave a new dimension to the operation of the Act. The provisions of the Act and the decided cases on the subject were discussed there and ultimately, it held as under: -
"The provisions of the Act of 1982, which are to be understood in the light of the Statement of Objects and Reasons for the Act and the decision of this Court in the case of Konda Lakshmana Bapuji indicate that a mere doubt raised by the State on the title and possession of the occupant of a land does not make him " a land-grabber". Whenever the right of the occupant is questioned by the State, it is not enough for the occupant to show that he has a prima facie bona fide claim to the land occupied but a burden is cast on him to prove that he is in occupation or possession of the land under a lawful title".
46. Apart from relying upon the judgments referred to above, the learned counsel for the petitioners have made a strong effort to convince this Court that having regard to the object of the Act and the language employed in various provisions, attempts to grab land constitute the basis to take cognizance of the matter. With equal vehemence, the counsel for the respondents oppose the same.
47. One of the contentions advanced is on the basis of the use of expressions `arrest and curb' in the statement of objects and reasons; and the word `prohibit' in the preamble of the Act. There is hardly any difficulty in understanding the context in which the words 'arrest and curb' were used. They, in fact indicate the legislative intention in bringing about the Act. The passages quoted by the learned counsel, from the Treatises of G.P.Singh and Maxwell and the decisions referred to therein, support this contention. What is more important, however, is that the necessity to refer to the preamble or statement of objects would arise only when there is ambiguity in the provisions of the resultant enactments or difficulty, in understanding them. If the operational provisions of the Act are clear, their scope can neither be restricted nor expanded, by reading the preamble or statement of objects. In the present context, the legislature expressed its concern over increasing instances of land grabbing and resolved to contain them. For that purpose, it coined definitions of such objectionable activities, declared them as punishable, prescribed the sentence, and constituted Fora for enforcing the provisions of the Act. In the process, it was open to the legislature to have treated or recognized the attempt also as an independent or ancillary crime, or punishable wrong.
48. In the field of criminal law, it is well recognized that there are four stages in the commission of any crime,namely, 1) intention 2) preparation, 3) Attempt, and 4) Actual commission. The basic literature and the decided cases in relation to this principle are not referred to, to avoid prolixity, and for the reason that the principle is too well settled. Law concedes necessary latitude to the legislature to treat any or every stage referred to above as independent or ancillary crime and to provide punishment similar to the one prescribed for the main crime, or of varying degrees. This, however, depends upon gravity of the crime and the stage at which, it deserve to be curbed. Once again, the final word, on this is that of the legislature. The Indian Penal Code (I.P.C) is a perfect illustration for this purpose.
49. For example, waging of war, attempt to war, abetting wage of war against Government of India is defined as a crime under Section 121 I.P.C and same punishment is provided for all of them and collecting arms with an intention to wage war is made punishable under Section 122 I.P.C. Thus, in relation to crime of waging war; preparation, attempt and actual commission, are made punishable. Under Section 126 I.P.C., committing depredation and making preparation to commit depredation is treated as a crime punishable with a sentence of seven years, levy of fine and forfeiture of property used in the commission of the offence. Here, two facets, i.e., preparation and commission are prohibited.
50. Attempts to murder, committing culpable homicide or to commit suicide are made independent offences under Sections 307, 308 and 309 I.P.C respectively. The list is not exhaustive. A residuary provision in the form of Section 511 is enacted, wherein, an attempt to commit any offence punishable with imprisonment for life is treated as an offence by itself, punishable with half of the sentence stipulated for the attempted crime. If a particular facet of a crime such as preparation, attempt is made punishable in law, the Courts have no discretion to confine the punishability only to the ultimate commission, and vice versa.
51. An example close to the subject matter can be borrowed from A.P.Prevention of Dangerous Activities of Bootleggers, Dacoits, Drug Offenders, Goondas, Immoral Traffic Offenders and Land Grabbers (Regulation of Place and Conditions of Detention), 1986. One of the objects of the Act is to punish land grabbers. The expression 'land grabber' is defined under Section 2(j) thereof. It reads as under: -
(j) "land grabber" means a person, who illegally takes possession of any land (whether belonging to Government, local authority or any other person) or enters into or creates illegal tenancies or leave and licence, agreements or any other agreement in respect of such lands; or who constructs unauthorized structures thereon for sale or hire, or give such lands to any person on rental or lease and licence basis or for construction or use and occupation of unauthorized structures or he knowingly gives financial aid to any person for taking illegal possession of such lands, or for construction of unauthorized structures thereon or who collects or attempts to collect from any occupier of such lands, rent compensation or other charges by criminal intimidation of who evicts or attempts to evict any such occupier by force without resorting to the lawful procedure or who abets in any manner the doing of any of the above mentioned things;" .
52. A reading of this definition discloses that the legislature treated the attempts to undertake some facets of activities, as constituting the prohibited activity itself. The illustrations furnished above disclose that wherever the legislature intends to curb a particular activity, it takes a considered and balanced decision to recognize the stage and manner of curbing the wrong, and to make punishable, either the ultimate crime or, any stages preceding it. Once such a provision is enacted, the Courts cannot curtail or widen its scope. It is also settled principle of law that if the legislation enacts different provisions in relation to same activity under different enactments, it must be understood that such a distinction was maintained consciously. The definition of 'mortgage' under Section 58 of the Transfer of Property Act and 'Mortgage deed' under Section 2(17) of the Indian Stamp Act demonstrates this.
53. Another submission made by the learned counsel for the petitioners is with reference to Sections 3, 4 and 5 of the Act. Section 3 makes land grabbing of any form and any activity connected with, or arising out of land grabbing, an offence punishable under the Act. Stress is laid upon the words and expressions such as `land grabbing in any form', `any activity connected with or arising out of land grabbing' (Section 3), 'caused to be committed land grabbing' (Section 4), `with a view to grabbing land, `instigates or incites' `attempts to procure any person to do any of the above mentioned acts' (Section 5). Reliance is placed upon a judgment of Supreme Court in State of Maharashtra Vs. Mohd. Yakub13. That case arose under Section 135 of the Customs Act, 1962. Two separate and concurrent judgments were rendered by Justice Sarkaria and Justice Chinnappa Reddy. Justice Sarkaria held;
"Attempt begins where preparation ends. In sum, a person commits the offence of 'attempt to commit a particular offence' when (i) he intends to commit that particular offence; and ii) he having made preparations and with the intention to commit the offence, does an act towards its commission; such act need not be a penultimate act towards the commission of that offence, but must be an act during the course of committing that offence".
Justice Chinnappa Reddy, pointed out, what constitutes attempt, as under:
"In order to constitute `an attempt' first, there must be an intention to commit a particular offence, second, some act must have been done, which would necessarily have to be done towards the commission of the offence, and third, such act must be proximate to the intended result".
Their Lordships referred several decided cases, while arriving at these conclusions. There is absolutely no difficulty in understanding or accepting the said propositions.
54. One factor which however, makes all the difference is that under Section 135 (i) (a), `fraudulent evasion' or `attempt at evasion of any duty chargeable on goods' were made punishable. In the present Act, attempt is not treated either as an independent offence or a facet of any other offences. The only place where the word used is in clause (e) of Section 5 of the Act. It needs to be noted that various acts and omissions referred to under Section 5 are in relation to the land, which is already grabbed. The word attempt refers to the sale, use or other related activities in relation to land, which is already grabbed.
55. Reserve Bank of India V. Peerless General Finance & Investment Co. Ltd.14, is cited in support of the proposition that the expression "in respect of the matter relating to or connected with", should be construed in such a way as to subserve the purpose for which the relevant provision was enacted. In para 22 of the Judgment, the Supreme Court made the following observation: -
" It is a well accepted canon of statutory construction that it is the duty of the Court to further Parliament's aim of providing a remedy for the mischief against which the enactment is directed and the Court should prefer a construction which advances this object rather than one which attempts to find some way of circumventing it".
56. A Passage from Francis Bennion on 'Statutory Interpretation' was in fact incorporated in it. Their Lordships were dealing with a regulatory provision of the Reserve Bank of India Act, 1934, which empowered the RBI to issue directions to residuary non-banking companies. The same principle cannot be applied to punitive provisions.
57. Another decision relied upon, on behalf of the petitioners is the one in Abhayanand v. State of Bihar. This is of no assistance to the petitioners, because that case arose under Sections 420 and 511 of I.P.C., which deal with specific and independent offences. Attempt to commit an offence was discussed in the context of Section 511 I.P.C.
58. Learned counsel for the petitioners urge that the Special Court as well as the Tribunal are conferred with the power to grant interim orders under sub-section (1) of Section 8 and 7-A, respectively, and that it is an indication towards conferring power to entertain applications to grant preventive relief also. It is pleaded that the Act provides for punitive and preventive measures and there is no incompatibility under the scheme of the Act, if the applications containing the allegations as to attempt to grab the land, are also entertained. It is true that the provisions referred to above confer powers on the Special Court or the Tribunal to take cognizance in relation to matters involving land grabbing, and ancillary powers, including the one to pass interim orders. The necessity to refer to the precedents suggesting that a Tribunal or Court has incidental powers, even if not specifically conferred, is not felt for the reason that the proposition is too well settled, and that such powers are expressly conferred under the Act.
59. Interim orders or directions are measures supplemental to the main relief that is prayed for, in the proceedings. By no stretch of imagination, an interim relief can either exceed the scope of the main relief, or, be construed as an independent relief, in itself. Further, what cannot be granted as a main relief in a proceedings, cannot be extended as a measure of interim relief.
60. In Union of India v. Paras Laminates (P) Ltd.15 the Supreme Court was dealing with the scope of ancillary powers of the Chairman of the Appellate Tribunal to refer the matter to a third member, in view of the difference of opinion among the members of the Bench. Though no specific provision enabling the Chairman to undertake such an exercise existed, the Supreme Court treated such power as ancillary and incidental to his other functions. Similarly, in Chief Executive Officer & Vice-Chairman v. Haji Daud Haji Harun Abu16, the ancillary powers of the State Commission under the Consumer Protection Act, were dealt with. Power to grant interim maintenance was treated as ancillary to power to grant maintenance under Section 125 Cr.P.C., in Savitri v. Gobind Singh Rawat17. In none of these decisions, there is an indication to the effect that a relief independent of, or, on par with the main relief, can be granted by any Court or Forum, in exercise of incidental or ancillary powers.
61. Further the nature of relief that can be granted under the Act becomes relevant in examining this issue. Sub-section (7) of Section 8, and sub-section (5) of Section 7-A, stipulate the nature of relief that can be granted by the Special Court and the Special Tribunal. Since the provisions are in pari materia, except for minor variations, it would be sufficient, to extract sub-section (7) of Section 8:
"Sec. 8 (7): It shall be lawful for the Special Court to pass such order as it may deem fit to advance the cause of justice. It may award compensation in terms of money for wrongful possession of the land grabbed which shall not be less than an amount equivalent to the market value of the land grabbed as on the date of the order and profits accrued from the land payable by the land grabber to the owner of the grabbed land and may direct re-delivery of the grabbed land to its rightful owner. The amount of compensation and profits, so awarded and costs of re-delivery, if any, shall be recovered as an 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 every such representation and evidence.]"
62. From this, it is clear the relief of re-delivery of possession of the grabbed land to the rightful owner can be granted by the Special Court or Tribunal, if necessary facts are pleaded and proved. In addition to that relief, compensation can also be awarded. This presupposes that the possession of the land was wrongfully assumed by the person accused of grabbing the land. If the attempts to grab land are to be treated as constituting a cause of action, to enable the party complaining of it, to initiate proceedings, the Court or Tribunal must be in a position to grant the relief in case the facts pleaded, are proved. In such an event, the nature of relief has to be in the form of a perpetual injunction or anything equivalent to it. There is no provision in the Act, which enables the Special Court or Tribunal to grant such relief. Therefore, this is also a pointer to the conclusion that the Act does not contemplate adjudication into matters where the allegation is only as to attempt to grab the land.
63. This view is fortified by the text of rules framed under the Act and the forms appended to them. In Forms II-A and II-B, appended to the Rules are, notices to be issued to the effected parties after the Special Court or Tribunal, as the case may be, takes cognizance of the case filed before them. They read as under:
"Form-II-A: Notice. The Special Court/Special Tribunal has taken cognizanceof the case filed by Sri............Son of.......... It is alleged that the land belonging to........as specified in the Schedule below is grabbed by Sri.........Son of.........."
64. The form does not contemplate a situation where the act complained of, is only an attempt to grab land. On the other hand, it refers to an act of accomplished grabbing. Reliance upon these Rules and the Forms is objected to, by the counsel for the petitioners, on the ground that they cannot be treated as part of the Act. In this regard, it is apt to refer the judgment of the Supreme Court in I.T Commissioner, Jullundur v. Ajanta Electricals, Punjab18. In that case, Section 139(2), of the Income Tax Act, as it stood at the relevant point of time, empowered the Income Tax Officer to serve notice upon an assessee, requiring him to furnish return of his income, during the previous year, in the prescribed form. It also provided that in case the return is not submitted within the stipulated or extended time, the assessee would become liable to pay interest. Rule 13 and Form No.6 appended to the Rules enabled the assessee to file an application for extension of time. The benefit under Rule 13 and Form No.6 was not extended to the respondent therein, on the ground that the relevant provision of the Act does not provide for it and Rules and Forms cannot be treated as part of that Act. B.P Jeevan Reddy, J, speaking for the Bench dealt with the contention with the following observations:
".....Though the rule cannot affect, control or derogate from the section of the Act, so long as it does not have that effect, it has to be regarded as having the same force as the section of the Act. If Section 139(2) is read along with Rule 13 and Form No.6 it becomes clear that an application for extension could be made even after the period allowed originally or as a result of extension granted had expired. Keeping in mind the object of giving discretion to the I.T.O. and the consequences that were to follow from not filing the return within time, we see no justification for reading into the section any limitation to the effect that no application could be made after the time allowed had expired. We see no good reason to construe the section so narrowly."
Therefore, there is nothing wrong in treating the Rules and Forms as constituting part, or at least, an extension of the principal enactment, so long as they are in conformity with the provision of the Act under which, they are framed.
65. Hence, it is difficult to accept the contention that existence of power to grant ancillary relief in the Special Court and the Tribunal, enables them to entertain applications alleging attempts to grab the land.
66. There is one more difficulty in accepting the contention of the petitioners. Os observed earlier, the Act provides for determination of civil and criminal liability and places the burden of proof, upon the person accused of grabbing the land. The question as to whether the relevant provisions of the Act maintained the clear distinction as to the nature of proof in civil and criminal cases, is a different aspect. However, from a reading of Section 10, which was extracted in the preceding paragraphs, it is clear that the Special Court or Tribunal shall assume that the person accused of grabbing the land, is a land grabber and the burden is upon him to prove that the land is not grabbed by him. This presumption, which has a statutory backing, cannot take in its fold, the attempts to grab the land. Conversely, the accused in such cases cannot effectively discharge the burden or prove that he did not attempt to grab the land. Such contingencies do not fit in to the framework of Section 10. Consequently, an accusation or allegation, which does not conform to such an important provision, cannot constitute the basis for taking cognizance.
67. At any rate, once sub-section (1) of Section 8 provided for the nature of matters, of which cognizance can be taken by the Special Court or the Tribunal, as the case may be, namely, those "arising out of any alleged act of land grabbing", it is too difficult to widen the scope of the same. It reads as under:
" Sec. 8(1): Procedure and powers of the Special Courts:- The Special Court may, either suo motu or on application made by any person, officer or authority take cognizance of and try every case arising out of any alleged act of land grabbing or with respect to the ownership and title to, or lawful possession of, the land grabbed, whether before or after the commencement of this Act, and pass such orders (including orders by way of interim directions) as it deems fit;"
68. The provision clearly indicates that cognizance can be taken only of those cases, which arise out of an alleged act of land grabbing, or with respect of ownership and title to, or lawful possession of the "land grabbed". It is difficult to accept the contention of the counsel for the petitioners that the term "land grabbed" is relatable to adjudication of "ownership and title' or "lawful possession' and not to "alleged acts of grabbing".
69. An important submission made on behalf of the respondents is that a penal provision should always receive strict construction and that it is impermissible to expand the scope of such provisions through process of interpretation. The Law on this aspect is well settled. Penal and fiscal statutes should receive strict construction, and even where two views are possible, the one, which avoids such liability to a citizen, has to be adopted. In Sujjan Singh v. State of Punbab19, the provisions of the Prevention of Corruption Act, fell for interpretation before the Supreme Court. It was observed therein as under:
"....There can be no doubt that the language of such a special provision must be strictly construed. If the words are capable of two constructions, one of which is more favourable to the accused than the other, the Court will be justified in accepting the one which is more favourable to the accused. Therecan be no justification however for adding any words to make provision of law less stringent than the legislature has made it."
70. Even while dealing with the provisions under Section 173 of West Bengal Premises Tenancy Act, 1956, which provided for striking of defence, the Supreme Court in Modula India v. Kamakshya Singh Deo20 held that since the provision penalises the defendant for certain defaults, the Court has to act with great circumspection before striking out the defence.
71. It is also useful to refer few judgments rendered by the Supreme Court in the recent past. In Assistant Commissioner v. Velliappa Textiles Ltd.21, it was held as under:
"It is a basic principle of criminal jurisprudence that a penal statute is to be construed strictly. If the act alleged against the accused does not fall within the parameters of the offence described in the statute the accused cannot be held liable. There is no scope for intendment based on the general purpose or object of law. If the legislature has left a lacuna, it is not open to the court to paper it over on some presumed intention of the legislature. The doctrine of casus omissus, expressed in felicitous language in CST v. Parson Tools and Plants is: (SCC p.28, para 16) "If the legislature wilfully omits to incorporate something of an analogous law in a subsequent statute, or even if there is a casus omissus in a statute, the language of which is otherwise plain and unambiguous, the court is not competent to supply the omission by engrafting on it or introducing in it, under the guise of interpretation, by analogy or implication, something what it thinks to be a general principle of justice and equity. To do so 'would be entrenching upon the preserves of legislature' (at AIR p.65 in Prem Nath L. Ganesh Dass v. Prem Nath L. Ram Nath per Tek Chand, J.), the primary function of a court of law being jus dicere and not jus dare."
To the same effect is the judgment in Sakshi v. Union of India22. A voluntary organization approached the Supreme Court with a prayer that Section 375 of I.P.C., be read to include certain acts amounting to it. The Supreme Court expressed inability to accede to the request, on the ground that being a penal provision, Section 375 I.P.C., cannot be expanded in its scope through interpretation.
72. In Tej Bahadur Dube v. Forest Range Officer23 the Supreme Court dealt with a confiscatory provision, namely, Section 29 (4) (a) (i) of the A.P Forest Act. In that case, the appellant was tried for the offence of transporting sandalwood products without obtaining a transit permit. The trial Court acquitted him by taking the view that transit permits under the relevant provisions were required only for sandalwood and not for sandal wood products. The High Court reversed it and convicted the appellant. The Supreme Court set aside the conviction and held that a penal provision has to be construed strictly, and if the requirement under the Act was only in relation to sandalwood, it cannot be read as taking in its fold sandal wood products also. The principle enunciated in the judgments referred to above clearly applies to the facts of the present case.
73. Lastly, it is contended by the counsel for the petitioners that the doubts, if any, in acceding to their contention, would be cleared, if the Schedule to the Act is taken in to account, as mandated by Section 17-B. It reads as under:
"17-B. Guidelines for interpretation of Act :- The Schedule shall constitute the guidelines for the interpretation and implementation of this Act."
74. The text of the Schedule is almost equivalent to that of the Act. It is very much in doubt as to whether the Legislature can require that what it has enacted, is to be interpreted on the strength of its preparatory material. Providing guidelines for interpretation, that too, by the legislating agency itself is either indicative of its own doubt as to the true purport and clarity of the enacted provisions, or may amount to usurpationthe jurisdiction of the Courts to interpret the law.
75. Way back in the year 1803 Chief Justice Marshal said in Marbury v. Madism that "it is emphatically, the province and duty of the judicial department, (Courts) to say what the law is". Just as legislation by the Courts is antithetical to the concept of constitutionalism, interpretation of laws by the legislature itself would be a transgression of its legitimate field of activity. Apart from the principle involved, the text of the Schedule, at least, part of it, is not in good taste. At one place, the following sentences occur:
"Law's delays is an undeniable fact, Matters pending in Civil and Criminal Courts take frustratingly long periods to reach finality. Matters pending in Civil Courts are delayed notoriously for long periods, even criminal cases taking long periods for disposal."
76. In a way, the legislature has undertaken to assess the performance of the Courts in general, little realizing the basic fact that much of the accumulation of arrears is on account of enactment of number of laws, without correspondingly enlarging the adjudicatory mechanism.
77. The submission of one of the counsel for the respondents that though more than two decades have elapsed, ever since the Act was brought into existence, no Magistrate was conferred with the powers under Section 11 of the Act; and no Special Court was constituted as contemplated under Section 7, for a period of five years, in the initial stages, is not controverted. The submission of the learned counsel that not a single individual has been convicted so far under the Act, and the Act has become a shelter for land grabbers; even if partially true, is a pointer to the effectiveness of the Act. Notwithstanding the mandate by the Legislature that the Act should be interpreted with reference to statement of objects and reasons contained in the Schedule, a clear and distinct conflict between Sections 11 and 12 stares at us. The provisions read as under:
"Sec.11. Power to try offences:- Notwithstanding anything in the Code of Criminal Procedure, 1973, every offence punishable under this Act shall be tried by a magistrate of the first class specially empowered by the Government in this behalf."
Sec.12. Sanction for prosecution of offence under the Act:-[No Court other than the Special Court] shall take cognizance of an offence punishable under this Act, except with the previous sanction of the [Special Tribunal] which sanction shall be accorded having regard to the circumstances of each case."
78. The conflict between these two provisions is manifest, and it hardly needs any effort to point out the same. Not a word is said about this in the Schedule, which runs to (9) printed pages. The effort is by no means to understate or downplay the problem, but to impress upon the Legislature to concentrate more on structuring the legislations, than to point an accusing finger towards the Courts.
79. Apart from the reasons stated above, accepting the plea of the petitioners, would result in a virtual institutional dislocation, if not breakdown. If Special Courts are to take cognizance of the matters on the allegations of attempt to grab or threat to dispossess, all the suits filed in the civil Courts for the relief of perpetual injunction, in respect of the lands, to which the provisions of the Act apply, have to be transferred or withdrawn to Special Court, or at least, be rejected by the concerned civil Courts, as not maintainable. Once the matters are treated as triable by the special Court under the Act, any other Court ceases to have jurisdiction over them. Sub-section (2) of Section 8 makes that clear. It reads as under:
"Sec.8 (2): Notwithstanding anything in the Code of Civil Procedure, 1908 [the Code of Criminal Procedure, 1973] or in the Andhra Pradesh Civil Courts Act, 1972, any case in respect of an alleged act of land grabbing or the determination of question of title and ownership to, or lawful possession of any land grabbed under this Act, shall be triable only in a Special Court constituted for the area in which the land grabbed is situated; and the decision of the Special Court shall be final."
80. Therefore, all such suits have to be dealt with under the Act. It was in this context that in Nawab Mohammed Kabiruddin Khan and Anr. V. M. Krishna Rao and Ors24. Justice P. Venkatarama Reddi, as he then was, observed as under:
"Before I close the case, I express my reservations in accepting the view expressed by Radhakrishna Rao, J., in Anji Reddy v. M.A. Ali Khan (2) 1990 (1) An.W.R. 717 that the Act applies not only to cases where grabbing had already taken place but also to continuing or attempted acts of grabbing the land. In a fit case, it has to be considered by Division Bench whether that decision followed by Ramakrishnam Raju, J., also, lays down the correct law. If that interpretation coupled with the proposition that plaint allegations alone have to be looked into is to be applied, the virtual result would be that almost all the injunction suits will have to go before the Special Court or Special Tribunal, as the case may be, to the exclusion of Civil Courts. Whether such was the result contemplated by the framers of the Act is a point which seriously deserves consideration in an appropriate case. Having regard to what I held above, I do not want to dilate further on this aspect."
The doubt expressed by His Lordship came close to reality and the time has come to put an end to the controversy.
81. For the foregoing reasons, we hold that an attempt to grab land cannot be treated as an act of land grabbing, as defined under Section 2(e) of the Act, and that the Special Court or Special Tribunal constituted thereunder do not have jurisdiction to entertain matters based on the allegations of attempts to grab land. To be precise, it is only in such matters where an applicant before the Court or Tribunal alleges that the land in question has been taken possession of, by the respondent therein, that they can exercise jurisdiction. The judgments reported in J. Anji Reddy v. Mir Ahmed Ali Khan (5 supra), Government of A.P. v. Sathaiah (6 supra), R. Komaraiah v. Special Court, Hyd. (3 supra) and Bhavanarishi Co-op. Housing Society V. State of A.P (4 supra), in so far as they held that attempt to grab land amounts to land grabbing, are overruled. We approve the view taken in Syedulla V. Special Court under A.P. Land Grabbing (Prohibition) Act (1 supra) and Shalivahana Builders (P) Ltd. Vs. S.G.Co-op. Housing Society (2 supra).
82. Since the writ petitions are not dealt with on merits, they are directed to be listed before the concerned Benches, to be disposed of on merits, based on the principle laid herein.