Safiya Bee Vs. Mohd.
Vajahath Hussain alias Fasi
JUDGMENT
CYRIAC JOSEPH, J.
1.
Leave
granted.
2.
According
to the appellant Safiya Bee, vide a registered Sale Deed dated 5th February,
1969, she had purchased from one Mohd. Hussain houses bearing Nos. 2-5-254,
2-5-255 and 2-5-256 along with the appurtenant lands. The respondent Mohd. Vajahath
Hussain alias Fasi forcibly occupied the house bearing No. 2-5-256 (re-numbered
as 4-3-65). The building has a plinth area of 1114 sq.ft. and the appurtenant
vacant land has an area of9341 sq.ft. Alleging that the respondent is a `land
grabber', the appellant filed L.G.O.P. No. 5 of 1990 under Section 7-A of the Andhra
Pradesh Land Grabbing (Prohibition) Act, 1982(hereinafter referred to as
"the Act") before the Special Tribunal, Adilabad seeking possession
of the house and the appurtenant land from the respondent. The respondent
contested L.G.O.P. No. 5 of 1990 and contended that he was not a land grabber,
that he, his mother and his brothers were in possession of the disputed property
in their own rights under law and that they were the owners of the disputed
property. He also disputed the claim of the appellant that she had purchased
the property as per registered Sale Deed dated 5th February, 1969. He alleged
that the registered Sale Deed was a fabricated and concocted document and that
late Mohd. Hussain was not in a position to sell the property as he was not of
sound mind at the relevant time. According to the respondent, the appellant did
not have the financial capacity to purchase the house and there was no need for
Mohd. Hussain to sell the house.
3.
After
considering the pleadings in the case and the evidence adduced, the Special
Tribunal allowed the application on 13thJune, 1997 and directed the respondent
to deliver the property to the appellant. In its order dated 13th June, 1997
passed in L.G.O.P. No. 5 of 1990, the Special Tribunal held that: 3(a) Mohd.
Hussain executed the registered Sale Deed dated 5thFebruary, 1969 in respect of
the disputed property in favour of theappellant after receiving the
consideration;(b) The appellant is the owner of the disputed property;(c) Mohd.
Hussain was in sound state of mind till his death;(d) The respondent could not
establish that Mohd. Hussain had gifted the northern portion of the house to
his younger son Mohd.Zafar Hussain and the southern portion with its open land
to his elder son Shaukat Hussain;(e) The respondent has grabbed the disputed
property and being a` land grabber' he is liable to be evicted from the
disputed land; and(f) The mother and the brothers of the respondent are not in possession
of the disputed property and the respondent alone has been in possession of the
property after grabbing it.
4.
Aggrieved
by the order dated 13th June, 1997 of the Special Tribunal in L.G.O.P. No. 5 of
1990, the respondent filed an appeal being L.G.A. No. 30 of 1997 in the Special
Court constituted under the Act. By its judgment dated 30th October, 1998, the
Special Court allowed the appeal holding that the application was not maintainable
before the Special Tribunal. Accordingly, the Special Court set aside the order
of the Special Tribunal in L.G.O.P. No. 5 of 1990 and directed the Special
Tribunal to return the application to the appellant herein for presentation to
a proper court if so advised. In the judgment dated 30th October, 1998, the
Special Court held that since the application of the appellant was in respect
of a house property which was alleged to have been grabbed by the respondent,
it was not maintainable before the Special Tribunal. According to the Special
Court, if an existing building itself is grabbed, the same will not fall within
the jurisdiction of the Special Tribunal or the Special Court and if land is
grabbed and thereafter structures are raised, it may fall within the
jurisdiction of the Special Tribunal or the Special Court. It was also made
clear by the Special Court that in view of its decision that L.G.O.P. No. 5 of
1990 was not maintainable before the Special Tribunal, it was not going into
the merits of the case.
5.
Challenging
the judgment dated 30th October, 1998 of the Special Court, the appellant
herein filed W.P. No. 35561 of 1998 in the High Court of Andhra Pradesh. By its
judgment dated 4 th July, 2000, the High Court allowed the writ petition, set
aside the judgment of the Special Court and remitted the matter back to the Special
Court for fresh hearing and disposal as to whether property has been grabbed by
the respondent and whether he is liable to be evicted delivering possession of
the property to the appellant. To hold that L.G.O.P. No. 5 of 1990 was
maintainable before the Special Tribunal, the High Court relied on Section
2(c)of the Act which states that land includes rights in or over land, benefits
to arise out of land and buildings, structures and other things attached to the
earth or permanently fastened to anything attached to the earth. The High Court
also pointed out that the word `land', as defined in other statutes and as
decided by the High Court and the Supreme Court in similar matters, includes super-structure,
building etc. unless they are excluded from the definition of `land' by a
Special Act. The High Court accepted the contention of the appellant that the
Act applies not only to lands but also to lands with building.
6.
The
above judgment in W.P. No. 35561 of 1998 was accepted by the respondent as it
was not challenged by him before any higher forum. Thus, the said judgment
became final and binding on the respondent.
7.
On
the basis of the remand of the matter by the High Court, L.G.A. No. 30 of 1997
was again heard and disposed of by the Special Court on 16th November, 2000. As
per the judgment dated16th November, 2000, the appeal was dismissed, the order
of the Special Tribunal was upheld and the respondent herein was directed to
deliver possession of the petition schedule property to the appellant herein
within a period of two months. While dismissing the appeal, the Special Court
held that the Sale Deed dated 5th February, 1969 relied upon by the appellant
was true and valid and was binding on the respondent. The Special Court also
rejected the contention of the respondent that there was an oral gift of the
property in the year 1954. Though the learned counsel for the respondent tried
to contend that the respondent had perfected his title by adverse possession,
the said contention was not entertained by the Special Court on the ground that
the respondent had not raised any plea or led any evidence in that regard and
such a point was not argued before the Special Tribunal and no finding was
recorded by the Special Tribunal.
8.
Thereupon
the respondent herein filed W.P. No. 304 of 2001in the High Court of Andhra
Pradesh challenging the judgment dated 16th November, 2000 of the Special Court
in L.G.A. No. 30 of1997. When the writ petition was heard by the High Court,
the main question raised related to the jurisdiction of the Special Tribunal to
consider the application in L.G.O.P. No. 5 of 1990 filed by the appellant
herein as it was in respect of a house property with its appurtenant land. It
was contended on behalf of the writ petitioner that the Special Tribunal had no
jurisdiction to deal with the house property and, therefore, the impugned
orders were without jurisdiction. It was also contended that the remand order passed
by the High Court in the earlier W.P. No. 35561 of 1998was in the nature of an
interlocutory order and was passed without considering the relevant provisions
of the Act and hence the order was without jurisdiction, a nullity and would
not operate as a bar. However, on behalf of the respondent in the writ
petition(appellant herein), it was contended that the remand order which had
become final and binding would operate as res judicata and that the buildings
and structures existing on the land would be covered by the definition of
`land' in Section 2(c) of the Act. It was also pointed out that the extent of
the open land was much more than the extent of the area covered by the
building. After noticing the contentions of the parties, the High Court
proceeded to consider the following questions : (i) Whether the property in
question is a building or land? and (ii) Whether the Special Tribunal has
jurisdiction to entertain an application in respect of a house property with
its appurtenant open land?
9.
In
its judgment dated 18th April, 2007, the High Court found that the conclusions
reached by the Special Tribunal were well founded upon the oral and documentary
evidence, that the Special Court too, on re-appraisal of the evidence,
concurred with the conclusions reached by the Special Tribunal and that there were
concurrent findings of the Special Tribunal and the Special Court on the
contentious issues between the parties. After considering the particulars
furnished by the appellant in the different columns of the application filed
before the Special Tribunal, the High Court observed that the property in
dispute was the house bearing Municipal No. 4-3-65 with its appurtenant open
land. Even though the question of jurisdiction of the Special Tribunal to
consider and decide the application in L.G.O.P. No. 5of 1990 had already been
considered and decided in the earlier W.P. No. 35561 of 1998, the High Court
proceeded to again consider the question of maintainability of the said
application before the Special Tribunal. By way of justification for such consideration,
the High Court has stated in the judgment that "since the decision of the
court while remitting the matter to the Special Court for fresh disposal was
mainly dependent upon the interpretation of a provision of the Act, which is a
pure question of law involving the interpretation process, such a decision will
not operate as res judicata". The High Court has held that "if an application
is filed seeking possession of building along with its appurtenant land because
the building in question is in existence on the land and is surrounded by the
vacant land, it cannot be said that it is a case of grabbing of land, but it is
certainly a case of occupation of a building". According to the High
Court, the Act applies to the lands but not to the buildings and when it is
alleged that the land is grabbed, the land along with the existing
super-structure or building thereon can together reflect as property in dispute
and in such a case the Special Tribunal or the Special Court has jurisdiction
to adjudicate. But if the application is for seeking possession of building
along with its appurtenant land, the Special Tribunal or the Special Court has
no jurisdiction to adjudicate the dispute. The High Court has drawn a
distinction between "building with its appurtenant land" and
"land along with building". Based on such reasoning, the High Court
has held that since the dispute in the case was in respect of a building with
its appurtenant land, the matter would not come squarely within the jurisdiction
of the Special Tribunal. The High Court has also observed that even though the
applicant seemed to have a good case on the factual aspect, unfortunately the applicant
approached a wrong forum which had no jurisdiction to adjudicate. As per the
judgment dated 18th April 2007, the High Court allowed the writ petition and
set aside the judgment dated16th November, 2000 of the Special Court as well as
the order dated 13th June, 1997 of the Special Tribunal.
10.
The
appellant has filed this appeal against the said judgment dated 18th April,
2007 of the High Court in W.P. No. 304 of 2001.We have heard the learned
counsel for the parties and have considered the materials placed on record.
11.
The
basic question to be considered is whether the High Court was correct in
holding that the appellant's application under Section 7-A of the Act was not
maintainable before the Special Tribunal "as the property in dispute was a
building with its appurtenant land". The Andhra Pradesh Land Grabbing(Prohibition)
Act, 1982 was enacted to prohibit the activity of land grabbing in the State of
Andhra Pradesh and to provide formatters connected therewith. As per Section
1(3), the Act applies to all lands situated within the limits of urban
agglomeration as defined in Clause (n) of Section 2 of the Urban Land (Ceiling
and Regulation) Act, 1976 and a Municipality. As per Section 1(3-A),the Act
applies also to any other lands situated in such areas as the Government may,
by notification, specify. Section 2(e) defines` land grabbing' as hereunder:
"`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
unauthorised 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."Section 2(c) defines `land' as hereunder: " `land'
includes rights in or over land, benefits to arise out of land and buildings,
structures and other things attached to the earth or permanently fastened to anything
attached to the earth" The above definition of `land' makes it clear that
the expression `land' includes "buildings, structures and other things
attached to the earth".
In view of such
inclusive definition of `land', grabbing a building attached to the earth
amounts to land grabbing for the purposes of this Act. Hence, the High Court
erred in holding that the Act applies to the land but not to the buildings. The
High Court was clearly wrong in holding that "if an application is filed seeking
possession of building along with its appurtenant land, because the building in
question is in existence on the land and is surrounded by the vacant land, it
cannot be said that it is a case of grabbing of land". In our view, if a
building along with the land on which it stands is the subject matter of the application
under Section 7-A of the Act, such application is maintainable before the Special
Tribunal. The distinction drawn by the High Court between "building with
appurtenant land" and "land along with building" is artificial
and hyper-technical and it defeats the very purpose of the legislation. In the
light of the definition of `land' under Section 2(c) of the Act, both the above
descriptions practically mean the same thing vis-`-vis `land grabbing' and
there is no logic or justification for drawing a distinction between them. Hence,
the High Court erred in holding that the application filed by the appellant was
not maintainable before the Special Tribunal.
12.
It
is to be noted that in Column 10 of the application submitted by the appellant,
Survey Number and Sub-Division Number of the land were given as:
"House
No.4-3-65, 2-5-256 (old) and open land comprising of 9341 square feet."In
Column 11, the extent of land was stated as: "Open land 9341 square feet,
Plinth area of the house 1114 square feet. "Against Column 14 relating to
summary of claim made and the provision of law under which it is preferred, the
entry was as follows: "The house and appurtenant land i.e. house bearing No.4-3-65
corresponding to old No.2-5-256 belongs to the petitioner. The petitioner
purchased the said house under registered sale deed dated 5.2.1969. The respondent
forcibly occupied the house and since then he is in the occupation of the said
house and open land. The registered sale deed was attested by the following two
witnesses:
1. Syed Afzal, s/o
Syed Shabbir Hussain, r/o Adilabad
2. Late Shaikh Ahmed
s/o Shaikh Abdulla r/o Adilabad. Late Ameerulla Khan was the scribe to the
document."
It is also to be
noted that the registered Sale Deed referred toabove was in respect of not only
the building but also the courtyard and backyard. From the above-mentioned
entries in the application filed by the appellant, it is clear that the subject
matter of the dispute was not only the building having plinth area of 1114
sq.ft. but also the open land comprising an area of 9341sq.ft. In the summary
of claim, the appellant's application had raised the claim specifically in
respect of "house and appurtenant land". It was specifically alleged
that the respondent forcibly occupied the house and since then he is in the
occupation of the said house and open land. In such circumstances, it cannot be
said that the subject matter of the dispute was only the building. The subject
matter of the dispute was the building and the appurtenant open land.
13.
The
High Court also erred in holding that only occupation of the open land and
construction of a building thereon can be treated as land grabbing and that
occupation of a building along with open land cannot be treated as land
grabbing under the Act. When the land along with the building existing thereon
is occupied, it will amount to land grabbing.
14.
In
the light of the above discussion, we hold that the application filed by the
appellant under Section 7-A of the Act before the Special Tribunal was maintainable
and that the Special Tribunal had necessary jurisdiction to adjudicate the
dispute raised therein.
15.
In
view of our finding that the application filed by the appellant before the
Special Tribunal was maintainable and that the Special Tribunal had
jurisdiction to adjudicate the dispute raised therein, the impugned order of
the High Court is liable to be set aside and the order of the Special Tribunal
and judgment of the Special Court are liable to be restored. Therefore, we consider
it unnecessary to examine the correctness of the finding of the High Court that
the decision of the High Court in the earlier W.P.No. 35561 of 1998 did not
operate as res judicata for considering the maintainability of the application
and the jurisdiction of the Special Tribunal in the later W.P. No. 304 of 2001.
16.
However,
even assuming that the decision in W.P. No. 35561of 1998 did not operate as res
judicata, we are constrained to observe that even if the learned Judges who
decided W.P. No. 304of 2001 did not agree with the view taken by a Co-ordinate
Bench of equal strength in the earlier W.P. No. 35561 of 1998 regarding the
interpretation of Section 2(c) of the Act and its application to the petition
schedule property, judicial discipline and practice required them to refer the
issue to a larger Bench. The learned Judges were not right in over-ruling the
statement of the law by a Co-ordinate Bench of equal strength. It is an
accepted rule or principle that the statement of the law by a Bench is
considered binding on a Bench of the same or lesser number of Judges. In case
of doubt or disagreement about the decision of the earlier Bench, the well
accepted and desirable practice is that the later Bench would refer the case to
a larger Bench.
17.
In
Union of India and Anr. v. Raghubir Singh (Dead)by LRs. Etc. [(1989) 2 SCC
754], (paras 27 and 28), a Constitution Bench of this Court held:
"27. What then
should be the position in regard to the effect of the law pronounced by a
Division Bench in relation to a case realising the same point subsequently
before a Division Bench of a smaller number of Judges? There is no
constitutional or statutory prescription in the matter, and the point is governed
entirely by the practice in India of the courts sanctified by repeated affirmation
over a century of time. It cannot be doubted that in order to promote consistency
and certainty in the law laid down by a superior Court, the ideal condition
would be that the entire Court should sit in all cases to decide questions of
law, and for that reason the Supreme Court of the United States does so. But
having regard to the volume of work demanding the attention of the Court, it
has been found necessary in India as a general rule of practice and convenience
that the Court should sit in Divisions, each Division being constituted of
Judges whose number may be determined by the exigencies of judicial need, by
the nature of the case including any statutory mandate relative thereto, and by
such other considerations which the Chief Justice, in whom such authority
devolves by convention, may find most appropriate.
It is in order to
guard against the possibility of inconsistent decisions on points of law by different
Division Benches that the rule has been evolved, in order to promote
consistency and certainty in the development of the law and its contemporary status,
that the statement of the law by a Division Bench is considered binding on a
Division Bench of the same or lesser number of Judges. This principle has been
followed in India by several generations of Judges. We may refer to a few of
the recent cases on the point. In John Martin v. State of West Bengal,(1975) 3
SCC 836, a Division Bench of three Judges found it right to follow the law
declared in Haradhan Saha v. State of West Bengal, (1975) 3 SCC 198,decided by
a Division Bench of five Judges, in preference to Bhut Nath Mate v. State of
West Bengal,(1974) 1 SCC 645 decided by a Division Bench of two Judges. Again
in Indira Nehru Gandhi v. Raj Narain,1975 Supp. SCC 1, Beg J held that the
ConstitutionBench of five Judges was bound by the Constitution Bench of
thirteen Judges in Kesavananda Bharati v.State of Kerala, (1973) 4 SCC 225.
In Ganapati Sitaram
Balvalkar v. Waman Shripad Mage, (1981) 4SCC 143, this Court expressly stated
that the view taken on a point of law by a Division Bench of four Judges of
this Court was binding on a Division Bench of three Judges of the Court. And in
Mattulal v. Radhe Lal, (1974) 2 SCC 365, this Court specifically observed that
where the view expressed by two different Division Benches of this Court could
not be reconciled, the pronouncement of a Division Bench of a larger number of
Judges had to be preferred over the decision of a Division Bench of a smaller
number of Judges.
This Court also laid
down in Acharya Maharajshri Narandraprasadji Anandprasadji Maharaj v. State of Gujarat,
(1975) 1 SCC 11 that even where the strength of two differing Division Benches
consisted of the same number of Judges, it was not open to one Division Bench
to decide the correctness or otherwise of the views of the other. The principle
was reaffirmed in Union of India v. Godfrey Philips India Ltd., (1985) 4 SCC
369 which noted that a Division Bench of two Judges of this Court in Jit Ram
Shiv Kumar v. State of Haryana, (1981) 1 SCC 11 had differed from the view taken
by an earlier Division Bench of two Judges in Motilal Padampat Sugar Mills v.
State of U.P., (1979) 2 SCC 409 on the point whether the doctrine of promissory
estoppel could be defeated by invoking the defence of executive necessity, and
holding that to do so was wholly unacceptable reference was made to the well
accepted and desirable practice of the later bench referring the case to a
larger Bench when the learned Judges found that the situation called for such reference.
28. We are of opinion that a pronouncement of law by a Division Bench of this
Court is binding on a Division Bench of the same or a smaller number of Judges,
and in order that such decision be binding, it is not necessary that it should
be a decision rendered by the Full Court or a Constitution Bench of the Court.
....."In Central
Board of Dawoodi Bohra Community and Anr. v.State of Maharashtra and Anr.
[(2005) 2 SCC 673], (para 12), a Constitution Bench of this Court summed up the
legal position in the following terms : "(1) The law laid down by this
Court in a decision delivered by a Bench of larger strength is binding on any
subsequent Bench of lesser or co-equal strength. (2) A Bench of lesser quorum
cannot disagree or dissent from the view of the law taken by a Bench of 19 larger
quorum. In case of doubt all that the Bench of lesser quorum can do is to
invite the attention of the Chief Justice and request for the matter being
placed for hearing before a Bench of larger quorum than the Bench whose
decision has come up for consideration. It will be open only for a Bench of
co-equal strength to express an opinion doubting the correctness of the view
taken by the earlier Bench of co-equal strength, whereupon the matter may be
placed for hearing before a Bench consisting of a quorum larger than the one
which pronounced the decision laying down the law the correctness of which is
doubted. (3)
The above rules are subject
to two exceptions : (i) The above said rules do not bind the discretion of the
Chief Justice in whom vests the power of framing the roster and who can direct any
particular matter to be placed for hearing before any particular Bench of any
strength; and (ii) In spite of the rules laid down hereinabove, if the matter
has already come up for hearing before a Bench of larger quorum and that Bench itself
feels that the view of the law taken by a Bench of lesser quorum, which view is
in doubt, needs correction or reconsideration then by way of exception (and not
as a rule) and for reasons given by it, it may proceed to hear the case and examine
the correctness of the previous decision in question dispensing with the need
of a specific reference or the order of Chief Justice constituting the Bench
and such listing."The above principles and norms stated with reference to
the Supreme Court are equally relevant and applicable to the High Court also.
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For
the reasons stated above, we allow the appeal and set aside the impugned
judgment dated 18th April, 2007 in W.P. No.304 of 2001. The order dated 13th
June, 1997 of the Special Tribunal in L.G.O.P. No. 5 of 1990 and the judgment
dated 16thNovember, 2000 of the Special Court in L.G.A. No. 30 of 1997 are upheld.
The respondent is directed to deliver the petition schedule property to the
appellant within a period of two months from today, failing which, the Revenue
Divisional Officer concerned shall deliver the petition schedule property to
the appellant within a period of two months after the expiry of the period of
two months mentioned above.
................................J.
(V.S. Sirpurkar)
................................J.
(Cyriac Joseph)
New
Delhi;
December
16, 2010.
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