Full Judgment Text
REPORTABLE
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
J U D G M E N T
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.
2
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:
4
(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
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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
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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.
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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 :
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“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
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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
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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.
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(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:
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(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:
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“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
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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,
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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.
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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]
22
..…………………………J.
[Dr. Mukundakam Sharma]
New Delhi;
April 15, 2009