Om Prakash Singh Vs.
M.Lingamaiah & Ors. [2009] INSC 751 (15 April 2009)
Judgment
IN THE SUPREME COURT
OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO.2564 OF 2009 [Arising out
of SLP (Civil) No. 7508 of 2008] Om Prakash Singh ...Appellant Versus M.
Lingamaiah & Ors. ...Respondents
S.B. SINHA, J :
1.
Leave
granted.
2.
Application
of the provisions of the Andhra Pradesh Land Grabbing (Prohibition) Act, 1982
(for short "the Act") is involved in this appeal.
3.
It
arises out of the following factual matrix.
One Ram Katin Singh
was the owner of a land measuring 16 acres, 30 guntas situate in Feerzadiguda
Village, Ranga Reddy District in the State of Andhra Pradesh.
Appellant claims that
it was a joint family property. There exists a dispute as regards date of death
of Ram Katin Singh. Whereas, according to the appellant, he died issueless on
22.02.1978, the respondents contend that he expired in 1992.
4.
Appellant
indisputably is a resident of Uttar Pradesh. The suit land is fallow.
Respondents allegedly taking advantage of the death of Ram Katin Singh
fabricated three fraudulent sale deeds dated 4.03.1980, 6.03.1980 and
17.03.1981 impersonating the said Ram Katin Singh. Respondents contend that Ram
Katin Singh was the exclusive owner of the property and transferred his right,
title and interest in favour of the respondent No. 1 herein by reason of the
aforementioned deeds of sale. Respondent No. 1, in turn, transferred his right,
title and interest by executing deeds of sale in favour of several persons.
Respondents denied and disputed that the transactions entered into by and between
Ram Katin Singh and the respondent No. 1, on the one hand, and the latter and
the respondent Nos. 2 3 to 6, on the other, were bogus, sham or illegal
transactions as alleged or at all.
5.
Appellant
filed an application before the Special Court constituted under the Act on or
about 16.02.2002. It was marked as L.G.C. SR No. 442 of 2002. The Special Court
by reason of an order dated 4.11.2003 dismissed the said application opining
that the only question as to whether Ram Katin Singh was alive on the date of
execution of the said deeds of sale in the year 1980, by itself, cannot be
determined as foundational fact necessary for initiating a proceeding before it
in absence of requisite pleadings.
6.
Aggrieved
thereby and dissatisfied therewith, the appellant filed a writ application
before the High Court of Judicature at Andhra Pradesh, which by reason of the
impugned judgment dated 13.12.2007 has been dismissed.
7.
Mr.
G. Hanumanth Rao, learned counsel appearing on behalf of the appellant would
contend:
(i) The Special Court
and consequently the High Court committed a serious error in passing the
impugned judgment insofar as they failed to take into consideration that the
Special Court had the jurisdiction to go into the question of title by and between
the parties.
(ii) Appellant having
pleaded the factum of land grabbing in the concise statement annexed to the
application, it was obligatory on the part of the Special Court to determine
the said issue.
8.
Mr.
P.S. Narasimha, learned senior counsel appearing on behalf of the respondents,
on the other hand, would support the impugned judgment.
9.
Before
adverting to the core question, we may notice some salient features of the Act.
The Government of
Andhra Pradesh noticed organized attempts on the part of certain lawless
persons operating individually and in groups, to grab either by force or by
deceit or otherwise, lands (whether belonging to the Government, a local
authority, a religious or charitable institution or endowment, including a
wakf, or any other private persons) as also the fact that the land grabbers are
forming bogus co-operative housing societies or 5 setting up fictitious claims
and indulging in large scale and unprecedented and fraudulent sales of lands
through unscrupulous real estate dealers or otherwise in favour of certain
sections of the people resulting in large accumulation of unaccounted wealth
and as thereby public order was also adversely affected now and then by such
unlawful activities of land grabbers in the State in respect of urban and
urbanisable land.
The Act was enacted
with a view to prohibiting the activities of land grabbing in the State of
Andhra Pradesh and to provide for matters connected therewith. The Act is a
Special Act. It is a self-contained Code.
`Land Grabber' is
defined in section 2(d) of the Act to mean 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.
`Land grabbing' has
been defined in Section 2(e) to mean :
"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 6 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 licence agreements
or any other illegal agreements in respect of such lands, or to construct
unauthorized structures thereon for sale or hire, or give such land 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."
Section 3 declares
`land grabbing' in any form to be unlawful and any activity connected therewith
to be an offence punishable under the Act.
Section 4 imposes
prohibition on land grabbing, violation whereof results in penal action(s) as specified
therein. Section 7 provides for constitution of Special Courts. The Chairman of
the Special Court is a sitting or retired Judge of the High Court and out of
other four members thereof, two ought to be sitting or retired District Judges
(Judicial members) and the other two who hold or have held a post not below the
rank of a District Collector. The process for appointment of the Chairman and
Members of the Judicial Members of the special court has been laid down in the
Act.
7 The Special Court
has been empowered to make regulations relating to the procedures to be
followed for the conduct of cases as also the manner of taking decisions.
Sub-section (5D) of Section 7 reads as under :
"5(D)(i)
Notwithstanding anything contained in the Code of Civil Procedure, 1908, the
Special Court may follow its own procedure which shall not be inconsistent with
the principles of natural justice and fair play and subject to the other
provisions of this Act and of any rules made thereunder while deciding the
Civil liability.
(ii) Notwithstanding
anything contained in Section 260 or Section 262 of the Code of Criminal
Procedure, 1973, every offence punishable under this Act shall be tried in a
summary way and the provisions of Sections 263 to 265 (both inclusive) of the
said Code shall, as far as may be apply to such trial.
(iii) When a person
is convicted of an offence of land grabbing attended by criminal force or show
of force or by criminal intimidation, and it appears to the Special Court that,
by such force or show of force or intimidation the land of any person has been
grabbed, the Special Court may if it thinks fit, order that possession of the
same be restored to that person after evicting by force, if necessary, any
other person who may be in possession of the property."
Section 7A of the Act
provides for the powers of the Special Tribunal, sub-section (1) whereof reads
as under :
8 "7-A.
"Special Tribunals and its powers etc:--(1) Every Special Tribunal shall
have power to try all cases not taken cognizance of by the Special court
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 the Andhra Pradesh Land Grabbing (Prohibition)(Amendment)
Act, 1987 and brought before it and pass such orders (including orders by way
of interim directions) as it deems fit.
Provided that if, in
the opinion of the Special Tribunal, any case brought before it is prima facie
frivolous or vexatious, it shall reject the same without any further enquiry;
Provided further that
if in the opinion of the Special Tribunal any case brought before it is a fit
case to be tried by the Special court it may for reasons to be recorded by it
transfer the case to the Special Court for its decision in the matter."
The first proviso
appended thereto empowers the Special Court to reject a case brought before it
without any further enquiry, if prima facie appears to be frivolous or
vexatious. Special Court may also for reasons to be recorded by it transfer a
case to the special court for its decision in the matter. A special court
ordinarily is required to follow the procedures prescribed in the Code of Civil
Procedure. An appeal is maintainable from a judgment or order to the special
court. Sub-section (4) of Section 7A makes a finding of the special tribunal
with regard to any alleged act of land 9 grabbing to be conclusive of the said
fact as also the persons who committed the act of land grabbing conclusive.
Section 8 provides
for the procedure and power of the special courts, the relevant portions
whereof read as under :
"8. Procedure
and Powers of the Special Court:
--(1) 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.
XXX XXX XXX (2B)
Notwithstanding anything in the Code of Criminal Procedure, 1973, it shall be
lawful for the Special Court to try all offences punishable under this Act.
(Central Act 2 of 1974).
(6) Every finding of
the Special Court with regard to any alleged act of land grabbing shall be
conclusive proof of the fact of land grabbing and of the persons who committed
such land grabbing, and every judgment of the Special Court with regard to the
determination of title and ownership to, or lawful possession of, any land
grabbed shall be binding on all persons having interest in such land.
Provided that the
Special Court shall by notification specify the fact of taking cognizance of
the case under this Act. Such notification shall 10 state that any objection
which may be received by the Special Court from any person including the
custodian of evacuee property within the period specified therein will be
considered by it.
Provided further that
where the custodian of evacuee property objects to the Special court taking
cognizance of the case, the Special Court shall not proceed further with the
case in regard to such property;
Provided also that
the Special Court shall cause a notice of taking cognizance of the case under
the Act, served on any person known or believed to be interested in the land,
after a summary enquiry to satisfy itself about the persons likely to be
interested in the land.
(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 such representation and evidence.
(8) Any case, pending
before any court or other authority immediately before the constitution of a
Special Court, as would have been within the jurisdiction of such Special
Court, shall stand transferred to the Special court as if the cause of action
on which such suit or proceeding is based had arisen after the constitution of
the special court."
Section 10 of the Act
provides for the burden of proof. Section 15 of the Act contains a non-obstante
clause stating that the provisions thereof shall have effect notwithstanding
anything inconsistent therewith contained in any other law for the time being
in force or custom, usage or agreement or decree or order of a court of any
other tribunal or authority.
10.
The
Act indisputably confers a wide jurisdiction upon the Special Tribunal and
Special Court. All attributes of a civil litigation can be gone into by the
Special Court and the Tribunal. The Tribunal is not only a court but by reason
of a legal fiction created is deemed to be a civil court. It contains a
non-obstante clause, by reason whereof the provisions of the Act would prevail
over the Code of Civil Procedure, 1908 as also the Andhra Pradesh Civil Courts
Act, 1972.
12 The Tribunal,
however, derives jurisdiction only when jurisdictional facts are disclosed in the
petition. For invoking the jurisdiction of the said court, it is necessary not
only to allege the act of land grabbing within the meaning of the provisions of
the Act but also a prima facie case must be found out to the Special Court
and/or the Tribunal in order to enable it to issue notices upon satisfying
itself as regards existence of an act of land grabbing. When it takes a suo
motu action, it has to hear the alleged land grabbers also. The statute,
therefore, provides for sufficient safeguards.
Ordinary disputes
with regard to a title of property are not within the exclusive jurisdiction of
the Special Court or the Tribunal. They have to be determined in ordinary civil
courts. The Special Courts and the Tribunals are not substitutes for the civil
courts in the litigations involving a civil dispute relating to immovable
property within the meaning of Section 9 of the Code of Civil Procedure. It has
the exclusive jurisdiction where land grabbing is alleged or appeared from the
application filed before it.
11.
The
principal disputes which are required to be determined by the Special Court, in
view of the statements made by the appellant before it, were:
(i) Whether the
property in question was a joint family property or a self-acquired one and in case
it was found to be joint family property, whether Ram Katin Singh was the Karta
thereof.
(ii) Whether Ram
Katin Singh died in 1978 or in 1992.
12.
Such
broad questions, in our opinion, have rightly been held to be beyond the
purview of the Special Court as the concise statement did not disclose the
foundational fact of land grabbing. In the concise statement, it was merely
stated:
"12. It is
submitted that the applicant informed that the said transfers through so called
manipulated, created and fabricated sale deeds in favour of M. Linamaiah and M.
Vijaya Bhaskar Reddy are not the transfers effected by late Ram Katin Singh,
the brother of the applicant, after 2 years of his death, which documents are
illegal, unlawful and void documents and that such documents do not convey or
transfer any of the applicant's rights in respect of the application schedule
land, which were mentioned in the said documents, which document are illegal
and unlawful transfers either on facts or in law."
13.
Our
attention has also been drawn to the paragraph 15 of the said concise
statement, which reads as under:
14 "15. It is
submitted that all the respondents had resorted to illegal, unlawful and
malafide acts of creation of documents on the client's land by resorting to
forgery of the signatures of late Ram Katin Singh and fabrication of the sale
deeds impersonating the dead person late Ram Katin Singh."
14.
Such
bald allegations, both according to the Special Court as also the High Court
creating a forged document by itself would not come within the mischief of
`Land Grabbing'. Appellant indisputably could raise such contentions before a
civil court. Such a relief of delivery of and cancellation of the deed comes
within the purview of Section 31 of the Specific Relief Act, 1963.
15.
Mr.
Hanumanth Rao has placed strong reliance on paragraph 7 of the decision of this
Court in L.L. Sudhakar Reddy and Others v. State of A.P. and Others [(2001) 6
SCC 634], which reads, thus:
"7. In the view
we have taken, we do not propose to express any opinion on merits of the case.
Suffice it to observe
that having made the observation that the appellants could have availed the
remedies of review under Section 17-A of the Act and the suit for declaration
of title and right, in our view, the learned Single Judge ought not to have
expressed any opinion on the merits of the case because after the High Court
has put its seal 15 of approval on the judgment and order of the Special
Court, the result of the review application and the suit would become a
foregone conclusion.
Further in regard to
the remedy of the suit, having regard to the provisions of sub-section (2) of
Section 8 read with Section 15 of the Act, no suit for title in respect of the
disputed land which is alleged to be a land grabbed by the first appellant,
could be entertained by the civil court. It may be apt to point out that under
sub-section (8) of Section 8, any case pending before any court or other
authority immediately before the constitution of a Special Court, as would have
been within the jurisdiction of such Special Court, stood transferred to the
Special Court as if the causes of action on which the suit or proceeding is
based had arisen after the constitution of the Special Court. In other words
the suit for declaration of title by the appellants would not be maintainable.
For the above
reasons, the order of the Division Bench under challenge confirming the order
of the Single Judge is set aside, the writ petition is restored to the file of
the High Court and the case is remitted to the High Court for deciding the writ
petition afresh in accordance with law."
The said decision,
itself, suggests that the lands must be found to have been grabbed before
proceeding under the Act could be initiated.
16.
Reliance
has also been placed on Konda Lakshmana Bapuji v. Govt. of A.P. and Others
[(2002) 3 SCC 258] wherein this Court opined:
16 "45. In
regard to the ingredients of the expression "land grabber", it is
necessary to point out that it is only when a person has lawful entitlement to
the land alleged to be grabbed that he cannot be brought within the mischief of
the said expression.
A mere prima facie
bona fide claim to the land alleged to be grabbed by such a person, cannot
avert being roped in within the ambit of the expression "land
grabber". What is germane is lawful entitlement to and not a mere prima
facie bona fide claim to the land alleged to be grabbed.
Therefore, the observation
of the Division Bench of the High Court in the said Writ Appeal No. 61 of 1978
that the appellant can be taken to have prima facie bona fide claim to the land
in dispute which was relevant for the said Land Encroachment Act, cannot be
called in aid as a substitute for lawful entitlement to the land alleged to be
grabbed, which alone is relevant under the Act."
17.
Respondents
herein have prima facie satisfied the Special Court that they have lawful
entitlement to the land in question and have possession thereof since 1980.
18.
In
Gouni Satya Reddi v. Govt. of A.P. and Others [(2004) 7 SCC 398], it was held:
"10. From a
reading of the definitions of the phrases "land grabber" and
"land grabbing" it is clear that the grabbing of any land must be without
any lawful entitlement and with a view to take possession of such lands
illegally. That is to say, 17 the land grabber must be aware of the fact that
he is entering into the possession illegally and without any lawful
entitlement. If such elements as indicated above are missing in our view, it
would not be a case of land grabbing."
Upon considering the
facts, it was furthermore opined:
"...The Special
Court has not recorded any finding that no such publication was made. S.
Prabhakara Rao may have been an impostor, or not a genuine person or a genuine
power-of-attorney holder of Respondent 3, but neither is there any such finding
nor facts or circumstances on the record to impute any such knowledge to the
appellant at the time of execution of sale deed in his favour. The provisions
of the Act would not cover such cases, unless coupled with the fact of not
being entitled to possession the person enters into possession with a view to
obtain illegal possession. Where such view of taking illegal possession is
missing or lacking, a person would not be covered under the definition of the
phrase or expression "land grabber". The facts, to indicate such
intention, though have been pleaded, as indicated earlier, but no such finding
has been recorded. The mere fact of legally not entitled to the possession
would not fulfil the ingredients of the definitions of "land grabber"
and "land grabbing"..."
19.
We
may, however, notice that in N. Srinivasa Rao v. Special Court under the A.P.
Land Grabbing (Prohibition) Act and Others [(2006) 4 SCC 214], a Two-Judge
Bench of this Court opined that the Special Court has no 18 jurisdiction to
decide question as regards acquisition of title by adverse possession in a
proceeding under the Act as the same would fall within the domain of the civil
court.
20.
In
A.P. Housing Board v. Mohd. Sadatullah and Others [(2007) 6 SCC 566], another
Two-Judge Bench although noticed the difference of opinion in the decisions of
this Court in N. Srinivasa Rao (supra) and Konda Lakshmana Bapuji (supra) in
the light of factual matrix involved therein, directed that the dispute between
the parties be determined by a civil court.
21.
We
may furthermore notice that the question in regard to the jurisdiction of the
land grabbing court has been considered at some length in Mahalaxmi Motors Ltd.
v. Mandal Revenue Officer and Others [(2007) 11 SCC 714] wherein inter alia it
was stated:
"40. The
Tribunal being possessed of extensive jurisdiction, subject of course to
fulfilment of the conditions precedent, for initiation of the proceeding, was
entitled to go into all issues. We have furthermore to bear in mind that the
definition of "land grabber" is not only restricted to the party to
the proceeding, but also includes his predecessor-in-interest. Once the land is
held to be a government land, the logical corollary thereto would be that
subject to the law of limitation and prescription, the State would not lose the
said right to the opposite party.
41. It may be true
that absence of lawful entitlement by itself may not be sufficient to pass a
judgment and decree in favour of the State and against the land grabber, but
also it must be shown that he had taken illegal possession thereof."
It was furthermore
opined:
"44. We would
like to add that the person's purported belief that he is legally entitled to
hold the land and his possession is not otherwise illegal must also be judged
not only from the point of time when he entered into the possession or when he
had acquired the purported title but also from the point of view as to whether
by reason of determination of such a question by a competent court of law, he
has been found to have no title and consequently continuance of his possession
becomes illegal. If the proceedee against whom a proceeding has been initiated
under the provisions of the said Act is entitled to raise the question of
adverse possession, which being based on knowledge of a lawful title and
declaration of the hostile title on the part of the person in possession, there
does not appear to be any reason as to why knowledge of defect in his title and
consequently his possession becoming unlawful to his own knowledge would not
come within the purview of the term "land grabbing" as contained in
Section 2 (e) of the Act. The provisions of the Act must be construed so as to
enable the tribunal to give effect thereto. It cannot be construed in a
pedantic manner which if taken to its logical corollary would make the
provisions wholly unworkable.
Only because a person
has entered into possession of a land on the basis of a purported registered
sale deed, the same by itself, in our considered opinion, 20 would not be
sufficient to come to the conclusion that he had not entered over the land
unauthorisedly, unfairly, or greedily."
22.
The
question has now been settled by a Three-Judge Bench of this Court in V.
Laxminarasamma v. A. Yadaiah (Dead) & Ors. [2009 (3) SCALE 685] wherein it
has categorically been held that the Special Court/ Tribunal has the requisite
jurisdiction to decide the question of adverse possession.
This case, as
indicated hereinbefore, stands on a different footing.
23.
Mr.
Hanumanth Rao would submit that whereas under the Act the burden of proof would
be on the land grabber, in the civil court, it would be on the plaintiff. It
may be so, but, in a case of this nature, where jurisdictional facts have not
been pleaded, the Special Court could not have exercised its jurisdiction.
Furthermore, in K.
Sharada Bai (Smt) and Another v. Shamshunnisa (Smt) and Others [(2008) 3 SCC
49], this Court upon noticing the definitions of "land grabbing" as
also "land grabber" held as under:
21 "...In view
of the above statutory provisions and of the claim of the applicant that she is
the original owner of the schedule property and her land was grabbed by the
appellants, the initial burden is on her to prove her right and title to the
property and if the same is discharged, the burden shifts on the
respondents."
24.
It
is not a case where the respondents claimed their title by reason of a
registered deed of sale, which was executed long time back. They have been
exercising their right of possession over the lands in suit for 22 years.
Appellant did not
disclose that he had either been in possession of the land or he has been
dispossessed. He had not been able to show any act of possession on his part or
on the part of the predecessor-in-interest after 1978. An application at his
instance was maintainable provided he proved himself to be lawfully entitled to
be restored back possession by establishing the fact that the land has been
grabbed.
25.
For
the reasons aforementioned, there is no merit in this appeal which is dismissed
accordingly. No costs.
...............................J.
[S.B. Sinha]
................................J.
[Dr. Mukundakam Sharma]
New
Delhi;
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