Gauhati High Court
Page No.# 1/6 vs Mahandra Terang And 2 Ors on 27 July, 2022
Page No.# 1/6
GAHC010002322022
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : I.A.(Crl.)/3/2022
APURBA KUMAR MEDHI AND 3 ORS
S/O- LT. KARUNA KANTA MEDHI, R/O- VILL- KAMALAJARI, P.O. AND P.S.
SONAPUR, DIST.- KAMRUP (M), ASSAM, PIN- 782402
2: AMIYA KUMAR MEDHI
S/O- LT. KARUNA KANTA MEDHI
R/O- VILL- KAMALAJARI
P.O. AND P.S. SONAPUR
DIST.- KAMRUP (M)
ASSAM
PIN- 782402
3: RAJIB KUMAR MEDHI
S/O- LT. KARUNA KANTA MEDHI
R/O- VILL- KAMALAJARI
P.O. AND P.S. SONAPUR
DIST.- KAMRUP (M)
ASSAM
PIN- 782402
4: BHABANI MOHAN MEDHI
S/O- LT. KARUNA KANTA MEDHI
R/O- VILL- KAMALAJARI
P.O. AND P.S. SONAPUR
DIST.- KAMRUP (M)
ASSAM
PIN- 78240
VERSUS
MAHANDRA TERANG AND 2 ORS
S/O- HARSING TERANG, R/O- VILL- SAKANIBARI, 22 MILE, P.S. KHETRI,
P.O. GANDHI NAGAR, DIST.- KAMRUP (M), ASSAM, PIN- 782403
Page No.# 2/6
2:KUSHAL BORO
S/O- SRI UDDHAM BORO
R/O- VILL- SONAPUR
P.S. SONAPUR
DIST.- KAMRUP (M)
ASSAM
PIN- 782401
3:LUNIT RAHANG
S/O- GAKHIR RAHANG
R/O- VILL- LAPHAR
P.O. NARTAP
P.S. SONAPUR
DIST.- KAMRUP (M)
ASSAM
PIN- 78240
Advocate for the Petitioner : MR. A R MEDHI
Advocate for the Respondent : M S CHAMARIA
BEFORE
HONOURABLE MR. JUSTICE ROBIN PHUKAN
ORDER
Date : 27-07-2022 Heard Mr. A. R. Medhi, learned counsel for the petitioners. And also heard Mr. S. Samaria, learned counsel for the respondent.
This interlocutory application is filed by the applicant Shri Mahandra Terang and 3 others with a prayer to vacate/ alter/ modify the interim order, dated 04.10.2021, passed by this Court in Criminal Petition No. 319/2021, which is being filed to quash the summon dated 21.01.2021, issued in Sessions Special (Land Grabbing) Case No.06/2020, as well as subsequent proceeding pending before the Court of learned Addl. District and Sessions Judge No. 1, Kamrup. It is to be noted here that vide order dated 04.10.2021, this Court was Page No.# 3/6 pleased to stay operation of order dated 21.01.2021, passed in Sessions Special (LG) Case No.06/2020, by the learned Addl. Sessions Judge, No. 1, Kamrup (M), by which the learned Court below has issued summon to the respondents-Shri Apurba Kumar Medhi and three others, to appear before it and to stand trial under Section 3/4/5 of the Assam Land Grabbing (Prohibition) Act, 2010. Also it is to be noted here that the order, dated 04.10.2021, was an ex-parte order.
Mr. Medhi, learned counsel for the applicants submits that the order, dated 04.10.2021, was an ex-parte order passed without hearing the petitioners. Mr. Medhi further submits that the relief sought under the Assam Land Grabbing (Prohibition) Act, 2010 and in the Title Suit No.142/2020, filed by them are different and both are maintainable. Mr. Medhi further submits that under the Land Grabbing Act, the petitioners sought punishment of the respondents. Referring one case law Akhil Ch. Kalita vs. Sankar Kumar Dey reported in 2019 (5) GLT 406, Mr. Medhi submits that both the proceedings are maintainable. Therefore, Mr. Medhi has contended to allow this application.
On the other hand Mr. S. Samaria, learned counsel for the respondent had submitted that the relief sought in the Title Suit No.142/2020, and in the case under the Land Grabbing Act, are same and as such both the proceeding are not maintainable and they have not right title and interest over the disputed land and that Page No.# 4/6 the procedure for filing application under the prescribed Rule, 2013, has not been followed and therefore, it is contended not to interfere the order, dated 04.10.2021.
Having heard the submission of the learned Advocates of both sides, I have carefully gone through the order, dated 04.10.2021, and also the case, filed before the Court below under the Land Grabbing Act, and also carefully gone through the Title Suit No. 142/2020, and the affidavit-in-opposition filed by the respondents. And I find sufficient force in the submission of Mr. Medhi, learned counsel for the applicants. And the ratio laid down in the case law Akhil Ch. Kalita (supra), referred by him, also fortified his submission. It is well settled that where the allegations gives rise to a civil claim and also amounts to an offence, merely because a civil claim is maintainable, does not mean that a criminal complaint cannot be maintained. Reference in this context can be made to a decision of Hon'ble Supreme Court in Amit Kappor vs. Ramesh Chander and others, MANU/SC/0746/2012.
It appears from the record that in the Title Suit No.142/2020, the petitioners have sought for declaration and recovery of possession and also permanent injunction restraining the respondents from entering the schedule land and house. It also appears that in the proceeding under Land Grabbing Act also the petitioners have prayed for declaration of right, title and interest and restoration of Page No.# 5/6 possession in their favour and also to arrest the respondents.
A careful perusal of the statement, object and reason the Assam Land Grabbing (Prohibition) Act, 2010 reveals that it was enacted to arrest and curb immediately such unlawful activities of land grabbing. Section 8 of the said Act provides that every special Tribunal shall have the power to try all cases arising out of any alleged act of land grabbing or with respect to the ownership and title to the lawful possession of the land grabbed. In the proceeding under the Land Grabbing Act, the Code of Civil Procedure and also the Code of Criminal Procedure are applicable. And the Special Tribunal has the power of the Civil Court and the Court of Session.
It also appears that in the alleged act of land grabbing both civil and criminal liability involves and in the case of civil liability the procedure prescribed in the Code of Civil Procedure is followed and in the case of criminal liability the procedure prescribed in the Code of Criminal Procedure is followed. Merely because the applicants have filed civil proceeding i.e. Title Suit No. 142/2020, and also criminal proceeding under the Land Grabbing Act and as such the submission made by Mr. Samaria, learned counsel for the respondent, that criminal proceeding is not maintainable, left this Court unimpressed. By instituting the proceeding under Section 3/4/5 of the Land Grabbing Act, the applicants have sought for the punishment as provided under the said Sections. And as such, at this initial stage, it cannot be said that the proceeding under the Page No.# 6/6 Land Grabbing Act is not maintainable.
In the result, I find sufficient merit in this application and accordingly the same stands allowed. The order, dated 04.10.2021, passed by this Court in Criminal Peititon No. 319/2021, staying operation of order, dated 21.01.2021, passed in Sessions Special (LG) Case No.06/2020, by the learned Addl. Sessions Judge, No. 1, Kamrup (M), is accordingly stands vacated.
In terms of the above, this I.A. stands disposed of.
JUDGE Comparing Assistant