Gauhati High Court
Anarul Hoque Alias Anar Hussain vs Sadir Ali on 27 January, 2020
Equivalent citations: AIRONLINE 2020 GAU 286
Page No.# 1/9
GAHC010119292018
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : CRP 74/2018
1:ANARUL HOQUE ALIAS ANAR HUSSAIN
S/O- NOOR MOHAMMAD, VILL AND P.O- HAIDOBI, P.S- BATADRAVA, DIST-
NAGAON, ASSAM, PIN- 782122
VERSUS
1:SADIR ALI
S/O- LATE TAYUB ALI, VILL AND P.O- HAIDOBI, P.S- BATADRAVA, DIST-
NAGAON, ASSAM, PIN- 782122
Advocate for the Petitioner : MR M H CHOUDHURY
Advocate for the Respondent : MR. M U MAHMUD
BEFORE HONOURABLE MR. JUSTICE MIR ALFAZ ALI JUDGMENT & ORDER (CAV) Date : 27-01-2020 This revision petition is filed under Article 227 of the Constitution of India challenging the legality of the judgment and order dated 20-12-2017 passed by the learned Special Tribunal under the Assam Land Grabbing (Prohibition) Act, 2010.
2. The facts, which may be necessary for disposal of this revision may be stated thus : The respondent, as petitioner, filed an application u/s 8 (2) of the Assam Land Grabbing (Prohibition) Act, 2010 ( for short Land Grabbing Act) alleging that he was the owner and has been possessing of the land measuring 1 Bigha 3 kathas covered by period patta No. 194, Dag No. 196 and land measuring 1 bigha covered by periodic patta No. 199, Dag No. 192. On 02-04-2014, the respondents (petitioners herein) being armed with various weapons illegally Page No.# 2/9 encroached into the aforementioned land which were in three different plots and since then they have been occupying the said land by constructing house. The respondent filed an application u/s 145/146 CrPC. However, no effective order was passed and therefore, the petition under the Assam Land Grabbing (Prohibition) Act, 2010 has been filed.
3. Out of the three respondents in the petition, the respondent Nos. 1 and 2 contested the proceeding by filing a joint written statement. However, the respondent No. 3 did not contest the proceeding. The pleaded case of the respondent No. 1 and 2 was that the petitioner (respondent herein) sold land measuring 1 bigha of Dag No. 90 and P.P. No. 68 Kissam at Habidubi to the respondent No. 2 by registered sale deed. But when the respondent Jainuddin went to take possession of the land, he found that another person was already occupying the said land. As the petitioner Sadir Ali had no land in the aforementioned dag and patta, he assured the respondent No. 2 Jainuddin, that he would provide an alternative plot of land in dag No. 196 of P.P. No. 192. When Jainuddin went to take possession of the said land he found that it was also occupied by another person and he realized that the petitioner Sadir has cheated him. Faced with such circumstances and having no alternative, the respondents (petitioners herein) approached the villagers with their grievances and there was a village meeting, where the petitioner Sadir Ali (respondent herein) was also present and in the said village meeting Sadir Ali admitted his fault and promised to provide 1 bigha of land in dag no. 192 and P.P. No. 199. As per the decision of the village meeting, where the respondent Sadir Ali was also a party, the possession of the disputed land measuring 1 bigha covered dag no. 192 of P.P. No. 199 was handed over to the respondent No. 2 Jainuddin and as such, it was pleaded case of the respondent that the respondents did not grab or illegally occupied the land in question and the petition u/s 8 (2) was filed by making concocted allegations. On the basis of the above pleadings, the learned Special Tribunal framed the following issues :-
1. Is there any cause of action for filing the case ?
2. Whether the petitioner/applicant has right, title and interest over the disputed land described in para 12 of the petition ?
3. Whether the respondents have grabbed the said land of the applicant on 2-4-2014 ?
4.Whether the applicant sold the schedule land to the respondents by registered sale deed ?
5.Whether the petitioner is entitled to get the reliefs as prayed for ?
4. Both the parties adduced evidence and upon hearing parties, the learned Special Tribunal passed the impugned order. While disposing the civil liability by the impugned order, learned tribunal held that petitioner Sadir Ali was the owner of the land and the respondents (petitioner herein) did not have any title over the disputed land and therefore, they were considered to be the land grabber and accordingly subsequent order/orders for delivery of possession of the land to the petitioner Sadar Ali was also passed.
5. Aggrieved by the above order, the present revision petition has been filed by the respondents.
6. I have heard Mr. M.H. Choudhury, learned counsel for the petitioners and Mr. M.U. Mahmud for the Page No.# 3/9 respondents.
7. Learned counsel for the petitioner submitted that in fact, respondent Jainuddin, to whom the petitioner Sadir Ali sold land, was in possession of the disputed land and the other two respondents being Anarul Hussain @ Anarul Hoque and Ashadul Hoque were no way connected with the proceeding. It was also contended that the said Jainuddin for fear of police already vacated the disputed land and the petitioner Anarul Hoque does not claim any right over the land in dispute. Mr. Choudhury further submitted that the impugned order is not sustainable, inasmuch as, Jainuddin, petitioner no. 2 was never a land grabber, nor his possession was illegal, and as such, the special tribunal did not have jurisdiction to pass the impugned order.
8. Refuting the submission of learned counsel for the petitioners, Mr. Mahmud would submit, that the respondents refused to vacate the land and the petitioner had to ask for police help and the execution of the order passed by the learned tribunal has been stayed because of pendency of the present revision petition.
9. Having regard to the nature of controversy raised in the instant case, it would be beneficial to reproduce certain relevant provisions of the Assam Land Grabbing (Prohibition) Act, 2010, including the definition of the term "land grabber" and "land grabbing," for better appreciation of the matter in controversy.
10. Section 2 (d) and (e) defines the term "land grabber" 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 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.
11. Section 8 of the Assam Land Grabbing (Prohibition) Act, which deals with the powers and functions of the Special Tribunal 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.
Page No.# 4/9 (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 directions) as it deems fit.
(3) ...................
(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.
(5) ...............................
(6) Notwithstanding anything contained in the Code of Criminal Procedure, 1973, , it shall, also be Iawful for the Special Tribunal to frame charge and try all offences punishable under this Act, if in the opinion of the Special Tribunal it is : so necessary after delivery of its decision and order in the Civil liability where prima-facie, it appears to the Special Tribunal that a particular person or a group of persons are responsible; for commission of an offence of land grabbing punishable under this Act.
12. Section 9 of the Assam Land Grabbing (Prohibition) Act reads as under :-
Special Tribunal to have the powers of the Civil Court and the Court of Session -- Save as expressly provided in this Act, the provisions of the Code of civil Procedure, 1908 (Act 5 of 1908) and the Code of Criminal Procedure, 1973 (Act 2 of 1974), insofar as they are not inconsistent with the provisions of this Act, shall apply to the proceedings before the Special Tribunal mutatis mutandis and for the purpose of the provisions of the said enactment, Special Tribunal shall be deemed to be a Civil Court, or as the case may be, a Court of Session and shall have all the powers of a Civil Court and a Court of Session and the person conducting a prosecution before the Special Tribunal shall be deemed to be a Public Prosecutor.
13. Section 10 of the Land Grabbing 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 Page No.# 5/9 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 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.
14. Section 21 of the Land Grabbing Act provides that "notwithstanding anything contained in this Act, the Assam Board of Revenue constituted under the Assam Board of Revenue Act, 1962 (Assam Act 21 of 1962) and officers authorised under the Assam Land and Revenue Regulation, 1886 (Regulation I of 1886) and the Rules framed thereunder, the Assam Fixation of Ceiling on Land Holding Act, 1956 (Assam Act I of 1957), the Assam (Temporarily Settled Areas) Tenancy Act, 1971 (Assam Act 23 of 1971 ) shall continue to discharge their functions under the respective Act".
15. What would appear from the above provision of law is that under the scheme of the Land Grabbing Act, the Tribunal can take cognizance of any case arising out of any act of land grabbing, either on the application made by the aggrieved person or any officer or authority or suo-moto by the tribunal itself and the tribunal shall exercise it's jurisdiction in two phases. In the first phase the tribunal shall decide the civil liability, including the question of "title" and "possession" of the land involved in the case and after deciding the civil liability, when the tribunal comes to a prima facie finding that the land in question has been grabbed, the tribunal can proceed to the second phase of criminal proceeding by framing charge against the alleged land grabber and try the criminal Page No.# 6/9 liability and convict him as per law.
16. Sub-section (1) of Section 10 provides that the Special Tribunal shall have the power of civil court as well as criminal court and the tribunal shall assume the power of civil court while deciding the civil liability and the power of the criminal court while deciding the criminal liability. Accordingly, both the civil and criminal proceeding shall also be governed by the Code of Civil Procedure or the Code of Criminal Procedure as the case may be, unless, it is found inconsistent with any of the provision of the Land Grabbing Act. Therefore, 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 Land Grabbing Act as the case may be. Therefore, before proceeding to the 2 nd 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. It is also to be borne in mind, that though, 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 Land Grabbing Act, such power of the tribunal is confined to the dispute arising under the Land Grabbing Act or 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.
17. What is apparent from the provision of Section 21 of the Land Grabbing Act is that the remedies provided under the land grabbing Act are in addition and not in substitution of the usual remedies available under other statures or laws. Therefore, though, the special tribunal enjoys the power of civil as well as criminal court or the special tribunal is deemed to be civil or criminal court, as the case may be, such deeming provision is only for the purpose of the Land Grabbing Act. Therefore, while deciding the civil liability if the tribunal finds that there is no case of "Land Grabbing" the tribunal has to stay its hand and cannot decide the title usurping the power of usual civil court.
18. As per Section 2 (d) of the Assam Land Grabbing (Prohibition) Act, 2010, land grabber is defined as a person, who occupies the land by illegal means as indicated in clause (d) and clause (e) of Section 2 of the Act, over which he/they has/have no ownership, title or physical possession and includes any person, who helps financially or otherwise in grabbing the land. Thus, from the expression appearing in the definition of "land grabber", a person or persons, can be said to have grabbed a land, over which he/they has/have no "ownership", "title" or "physical possession". Therefore, one must bear in mind the connotation of the expressions "title", "ownership" and "physical possession. A land grabber must be one, who must not have title or ownership or physical possession over the land. The disjunctive 'or' in between ownership, title and physical possession clearly demonstrates, that if a person has title or ownership or physical possession over the land, he cannot be a grabber of the said land. A person may not have title or ownership, but if he has been in settled physical possession of a land for a long time and the possession is not obtained by any illegal means, he cannot Page No.# 7/9 be dubbed as land grabber, because in order to constitute "land grabbing" as defined in section 2(e) of the Land Grabbing Act, as transparent from the expression "without any lawful entitlement and with a view to illegally taking possession etc" there must be criminal intention. Dehors criminal intention mere unauthorised possession may not come with the definition of "land grabbing", although, there may be a civil dispute over title or possession.
19. When a person has come into the possession of a land initially in any legal or authorised manner and remained in physical possession of the land for a long time without any interruption, one cannot come in one fine morning and file a petition under the Land Grabbing Act, even if such possession subsequently becomes unauthorised. A person may enter into possession legally under some authority or unauthorisedly. Once a person enters into possession of a land by any legal means or under any kind of authority, even if, later on, his possession is found to be not in conformity with the law, such physical possession of the person shall not come within the purview of the Land Grabbing. For example a person may enter into possession of the land with some sort of permission or license implied or expressed oral or written and subsequently his possession becomes unauthorised because of his licensee or permission being revoked, such unauthorised possession and the dispute arising there-from shall not come within the purview of the Land Grabbing Act, nor the special tribunal assume the jurisdiction to deal with such dispute involving the question of right, title and possession, reason being that the power of the civil court or criminal court enjoyed by the tribunal is limited to the land, which comes within the definition of "land grabbing" as defined in Section 2 (e) of the Assam Land Grabbing Act. Unless the facts brings the case within the definition of land grabbing, i.e., unauthorized occupation with criminal intention, the tribunal cannot exercise jurisdiction or decide the question of possession or title of a party. The proposition would be further clear from the preamble of the Act, which provides as under :-
Preamble - 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."
20. From the preamble of the Assam Land Grabbing (Prohibition) Act, 2010 also, it is abundantly clear, that the object of the Land Grabbing 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, the usual civil dispute concerning the land relating to the possession or title cannot be a subject matter under the Assam Land Grabbing Act, 2010, unless the unauthorized occupation or possession is associated with criminal intention. Therefore, mere unauthorized possession shall not constitute "land grabbing" unless such occupation or possession is actuated by illegal acts and criminal intention and Page No.# 8/9 comes within the definition of "land grabbing".
21. Coming to the case in the hand, the complainant alleged in the application u/s 8 (2) of the Assam Land Grabbing (Prohibition) Act, 2010, that the disputed land comprised of three plots, viz., land measuring 1 (one) bigha covered by P.P. No. 194 and dag No. 196, land measuring 1 (one) bigha covered by P.P. No. 199 and dag no. 192 and land measuring three katha covered by P.P. No. 194 and dag no. 196. The allegation was brought initially against three respondents, viz., Anar Hussain, Jainuddin and Abdul Hoque. It was alleged in the petition, that all the three respondents armed with deadly weapons illegally encroached and grabbed the entire land described in the petition. Whereas, such allegation was denied by the respondents in their written statement. While adducing evidence, the petitioners admitted that land measuring 3 katha covered by P.P. No. 194 dag no. 196 did not belong to him and the said land and ought not to have included in the disputed land. The petitioner also admitted in his evidence that respondent No. 3 was wrongly impleaded, as he was not connected with the land in question.
22. From the record and the impugned judgment, it appears that the respondent Nos. 1 & 2 occupied only land measuring 1 (one bigha) covered by dag no. 191 and P.P. No. 199. The specific plea of the respondent No. 2 was that the petitioner sold 1 (one) bigha of land to the respondent No. 2 Jainuddin for a valuable consideration of Rs. 30,000/- by a registered deed No. 71/2010, but the petitioner failed to give possession of the said land as the Dag No. 90 and Patta No. 68 was wrongly mentioned in the sale deeds. The respondent admitted that he did not have mutation over the land covered by Dag No. 90 and Patta No. 68, which was already in possession of another person. As the petitioner failed to give possession of the land sold by him through the sale deed No. 71/2010, the respondent no. 2 approached the villagers to settle the matter. In fact, the petitioner Sadir Ali also admitted in his evidence in unambiguous terms, that he sold the land measuring 1 (one) bigha for a consideration of Rs. 30,000/- vide sale deed no. 71/2010. However, he further stated that he had no mutation in respect of the land described in sale deed No. 71/2010. That there was a village meeting has also not been denied by the petitioner Sadir Ali. Because in his cross-examination initially he sought to deny the holding of public meeting, but, later on, he stated, that though, the meeting was held, he was not present in the meeting. However, the respondent no. 2 deposed in his evidence that the petitioner Sadir Ali was present and agreed in the public meeting to give possession of one bigha of land out of dag no. 192 and patta no. 199, as the land described in the sale deed executed by him was in possession of another person. He also deposed that in presence of both the parties in the village meeting, the possession of the land measuring one bigha out of Dag No. 192 and Patta No. 199 was given to him and respondent Sadir Ali also undertook to execute a fresh deed for the same. The evidence of the respondent No. 2 could not be shaken during cross-examination, except putting some suggestion. Learned tribunal, however, came to the conclusion, that the land measuring one katha admittedly belonging to the respondent Sadir Ali and petitioners cannot claim any title there over. Since the respondent Sadir Ali had title over the disputed land and the petitioners did not have title, the petitioners were declared as land grabber for want of title. The learned tribunal also held, that as the respondent Sadir Ali did not have title over the land described in the sale deed No. 71/2010, the petitioner could not acquire any title by such Page No.# 9/9 sale deed. 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.
23. It is made clear that this order shall not come in the way of any other remedy before the usual civil court in respect of the land involved in the present case for the reasons already indicated hereinbefore.
24. The petition stands allowed.
25. Send back the record.
JUDGE Comparing Assistant