TMI Blog2010 (1) TMI 1221X X X X Extracts X X X X X X X X Extracts X X X X ..... reddy District (appellant herein) filed an application before the Special Tribunal constituted under the Land Grabbing Act for recovery of the possession of 5 acres land by alleging that the same was illegally occupied by Gonda Mallaiah. During the pendency of the application, Gonda Mallaiah died and the respondents herein were brought on record as his legal representatives. In their reply, the respondents denied the allegation that their father had illegally occupied the land and pleaded that they have acquired title by adverse possession because they are in possession of the land and cultivating the same for last more than 50 years without any interference or obstruction. The respondents further pleaded that being landless poor they are entitled to assignment of land as per the Board's Standing Orders, but instead of acting on their representations, the appellant initiated proceedings under the Land Grabbing Act by wrongly treating them as land grabbers. 3. By an order dated 27.5.1997, the Special Tribunal allowed the application of the appellant and declared that the schedule land is Government land which had been grabbed by Gonda Mallaiah and his successors and directed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Shri M.N. Rao, learned senior counsel appearing for the respondents repeatedly urged that this Court should not pronounce upon the legality and correctness of the impugned order because the application made by the respondents for assignment of land and/or regularization of their possession in accordance with policy framed by the Government is pending and is likely to be decided shortly. He then argued that the finding recorded by the High Court in favour of the respondents on the issue of their having acquired title by adverse possession is unassailable because the evidence produced by the parties is sufficient to establish that Gonda Mallaiah and the respondents were in uninterrupted possession of the schedule land for more than 50 years and the proceedings initiated against Gonda Mallaiah under the Encroachment Act were dropped after due consideration of the reply filed by him. Shri Rao submitted that failure of the concerned authorities of the Government to challenge the occupation of land by Gonda Mallaiah and the respondents for more than 50 years is conclusive of the fact that their possession was open and hostile and the High Court did not commit any error by declaring tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... court. In Government of Andhra Pradesh v. Thummala Krishna Rao (1982) 2 SCC 134, this Court approved the view of the High Court and held that the Government cannot take unilateral decision that the property belongs to it and then take recourse to summary remedy under Section 6 of the Encroachment Act for eviction of the occupant. 9. In view of the afore-mentioned development and keeping in mind the fact that there has been large scale grabbing of land belonging to Government, local authorities, religious/charitable institutions including a Wakf and even private lands, the State Legislature enacted the Andhra Pradesh Land Grabbing (Prohibition) Act, 1982 (hereinafter referred to as `the Land Grabbing Act') to prohibit every activity of land grabbing in the State and to provide for matters connected therewith. The new legislation deals with all types of land grabbing, public as well as private and provides for a comprehensive mechanism, which is substantially different than the one provided in the Encroachment Act, for eviction of land grabber and adjudication of related disputes without requiring the parties to seek remedy before the regular court. The necessity of bringing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... deniable fact. Matters pending in Civil and Criminal Courts take frustratingly long periods to reach finality. Matters pending in Civil Courts are delayed notoriously for long periods, even criminal cases taking long periods for disposal. The observations of Hon'ble Sri Y.V. Chandrachud, Chief Justice, Supreme Court of lndia, in In Re. The Special Courts Bill, 1978 highlight the reality. In urban areas due to pressure on land, prices have been constantly soaring high, and taking advantage of this phenomenon, unscrupulous and resourceful persons backed by wealth and following occupied without any semblance of right, vast extents of land belonging to the Government, Local authorities, Wakfs, and Charitable and Religious Endowments and evacuees and private persons. In several cases such illegal occupations were noticed in respect of lands, belonging to private individuals who are not in a position to effectively defend their possession. In many cases this is being done by organised groups loosely called Mafia , a distinct class of economic offenders, operating in the cities of Andhra Pradesh. Unless all such cases of land grabbing are immediately detected and dealt sternly and sw ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt provisions of the Land Grabbing Act as amended in 1987. The same are as under:- 2. Definitions:- (d) Land grabber means 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 unauthorised 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. (e) 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 licence agreements or any other illegal agreements in respect of such lands, or to construct unauthorised structures thereon for sale or hire, or give such land to any person on rental or lease and l icen ce b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al shall lie, from any judgment or order not being interlocutory order of the Special Tribunal, to the Special Court on any question of law or of fact. Every appeal under this sub-section shall be preferred within a period of sixty days from the date of Judgment or order of the Special Tribunal; (4) Every finding of the Special Tribunal 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 Tribunal with regard to the determination of the title and ownership to, or lawful possession of, any land grabbed shall be binding on all persons having interest in such land: 8(2). Notwithstanding anything in the Code of Civil Procedure 1908 (Central Act 5 of 1990) the Code of Criminal Procedure, 1973 or in the Andhra Pradesh Civil Courts Act, 1972, (Act 9 of 1972) any case in respect of an alleged act of land grabbing or the determination of questions of title and ownership to, or lawful possession of, any land grabbed under this Act shall, subject to the provisions of this Act, be triable in the Special Court and the decision of Special Court shall be f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d grabbing. 14. Since the basic objective of the Land Grabbing Act is to free the public as well as private land from the clutches of encroachers and unauthorized occupants, the provisions contained therein are required to be interpreted by applying the rule of purposive construction or mischief rule which was enunciated in Heydon's case [(1584) 3 Co. Rep. 7a] and which has been invoked by this Court for construing different legislations. In Bengal Immunity Company Ltd. v. State of Bihar 1955 (2) SCR 603, S.R. Das, C.J.I. explained this rule in the following words:- It is a sound rule of construction of a statute firmly established in England as far back as 1584 when Heydon's case was decided that for the sure and true interpretation of all Statutes in general (be they penal or beneficial, restrictive or enlarging of the common law) four things are to be discerned and considered: 1st - What was the common law before the making of the Act, 2nd - What was the mischief and defect for which the common law did not provide, 3rd - What remedy the Parliament hath resolved and appointed to cure the disease of the commonwealth, and 4th - The true reason of the remedy; an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... us or charitable institution or endowment including a wakf, or other private person, shall be guilty of an offence under the Act. By Section 7(1), the State Government is empowered to constitute a Special Court for expeditiously holding an enquiry into any alleged act of land grabbing and trial of cases in respect of the ownership and title to, or lawful possession of the land grabbed. Section 7-A(1) lays down that every Special Tribunal shall have power to try all cases of which cognizance has not been taken by the Special Court whether before or after the commencement of the Andhra Pradesh Land Grabbing (Prohibition) (Amendment) Act, 1987. Section 7-A(2) lays down that a Special Tribunal shall, save as otherwise provided in the Act, follow the procedure prescribed in the Code of Civil Procedure (CPC) in the trial of cases under the Act. Section 7-A(3) provides for an appeal against any judgment or order except an interlocutory order, to the Special Court on any question of law or of fact. By virtue of Section 8(1), the Special Court is empowered to either suo moto, or on an application made by any person, officer or authority, take cognizance of and try every case arising out of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Civil Court, Hyderabad. The trial Court dismissed the suit by recording a finding that the suit land was a Government land and the plaintiff did not have any title over it. As a sequel to this, Tehsildar, Hyderabad initiated proceedings against the appellant and passed an order on 28.5.1977 for his eviction. The appellant challenged that order by filing a writ petition in the High Court. The learned Single Judge allowed the writ petition. During the pendency of writ appeal preferred by the respondents, the Land Grabbing Act came into force. However, this was not brought to the notice of the Division Bench, which opined that there was bona fide dispute of title, which must be adjudicated by the ordinary court of law. Accordingly, the writ appeal was dismissed. The appellant filed another writ petition against his threatened dispossession. The same was disposed of by the learned Single Judge by taking note of the observations made by the Division Bench and the fact that the Government had already filed suit in the Court of IV Additional Judge, City Civil Court, Hyderabad for declaration of title and recovery of possession. Later on, the suit was transferred to the Special Court, whi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... illegally taking possession of such lands, or enter or create illegal tenancies or lease and licence 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 unauthorised structures; or (ii) he has given financial aid to any person for taking illegal possession of lands or for construction of unauthorised structures thereon; or (iii) he is collecting or attempting to collect from any occupiers of such lands rent, compensation and other charges by criminal intimidation; or (iv) he is abetting the doing of any of the abovementioned acts; or (v) that he is the successor-in-interest of any such persons. The Court then considered the question whether a person prima facie claiming title over the land alleged to have been grabbed can also be treated as covered by the expression `land grabber' and answered the same in the following words: 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 lan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at a mere allegation of land grabbing is sufficient to invoke the jurisdiction of the Special Court and that civil court's jurisdiction is ousted in all matters which fall within the jurisdiction of Special Court. The Bench referred to judgments in Konda Lakshmana Bapuji v. Govt. of A.P. (supra), Gouni Satya Reddi v. Govt. of A.P. and others (supra) and observed: Lawful entitlement on the part of a party to possess the land being the determinative factor, it is axiomatic that so long as the land grabber would not be able to show his legal entitlement to hold the land, the jurisdiction of the Special Court cannot be held to be ousted. The Bench in Konda Lakshmana Bapuji has applied both the broader and narrow meanings of the said expression. It would not, however, mean that all the tests laid down therein are required to be satisfied in their letter and spirit. What is necessary to be proved is the substance of the allegation. The proof of intention on the part of a person being his state of mind, the ingredients of the provisions must be considered keeping in view the materials on records as also circumstances attending thereto. What would be germane for lawful entitleme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or greedily. (emphasis supplied) 19. From the above extracted observations made in Mahalaxmi Motors Ltd. v. Mandal Revenue Officer and others (supra), it is clear that the Bench unequivocally approved the ratio of Konda Lakshmana Bapuji v. Govt. of A.P. (supra) and though not stated in so many words, it did not agree with the ratio of the judgment in Gouni Satya Reddi v. Govt. of A.P. and others (supra), which was decided without noticing the earlier judgment in Konda Lakshmana Bapuji v. Govt. of A.P. (supra). 20. N. Srinivasa Rao v. Special Court 2006 (4) SCC 214 is also a judgment rendered by a two-Judge Bench on the scope of the Special Court's jurisdiction to decide the question whether the alleged land grabber has acquired title by adverse possession. Without noticing the earlier judgment of the coordinate Bench in Konda Lakshmana Bapuji v. Govt. of A.P. (supra), the two-Judge Bench held that the Special Court constituted under Section 7 of the Land Grabbing Act does not have the jurisdiction to decide questions relating to acquisition of title by adverse possession in a proceeding under the Act and the same would fall within the domain of the civil courts. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on to the facts of the present case. 22. In the light of the above analysis of the relevant provisions of the Land Grabbing Act and law laid down by this Court, we shall now consider whether the Division Bench of the High Court was justified in interfering with the orders passed by the Special Tribunal and Special Court for eviction of the respondents. 23. While deciding the application filed by the appellant, the Special Tribunal referred to the oral as well as documentary evidence produced by the parties including khasara pahani (Ex.A-2) in which the schedule land is recorded in the name of the Government, sketch of the suit land (Ex.A-7) and held that the land belongs to the Government. The Special Tribunal further held that filing of application by Gonda Mallaiah for assignment of land by being treated as landless poor is also indicative of the fact that the land belongs to the Government. The plea of the respondents that they have perfected title by long possession was rejected by the Special Tribunal by making the following observations: (i) The documents produced by the respondents are only xerox copies of the notices issued to them from 1965 onwards and the same w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tant fact which has to be looked into is that some signature and the date 21.2.1969 are very clear when the other recitals are not at all legible. The total extent of the Sy. No. is not mentioned in the relevant column. The person who signed the notice or other details are sadly lacking. The next notice is Ex.B-6 dated 22.6.1985. This is also a xerox copy. To whom the notice is issued is not clearly legible. But above the word R/o name of Mallaiah appears but the surname is totally different. It is not Gundla Mallaih, but it is totally different. Here in this xerox copy the total extent of the Sy. No. is shown as Ac 18-18 gts, but the figures are tampers with and that is clear even to a naked eye. The land in the occupation of the person is mentioned in the relevant column as Ac.7-12 gts. Ex.B-7 is the reply to Ex.B-6 notice. The reply is submitted by Rakathapu Mallaiah, son of Venkaiah, not by the father of the respondents Goundla Mallaiah. Therefore, it is not clear whether the notice Ex.B-7 was issued to the father of the respondents or not. It is true that the matter relates to the petition schedule property. It is interesting to see in the reply Ex.B-7 that the respondent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... treated as land grabbers because they are in occupation of the land for many decades and are paying the land assessment was rejected by the Special Court by relying upon order dated 15.12.1994 passed in LGC No.106/1989 in which it was held that in view of Rule 2 of the Andhra Pradesh (Telangana Area) Land Revenue Rules, any person desiring to take up un-occupied land is required to submit an application to the Tehsildar and he shall not enter upon the land without obtaining written permission from the Tehsildar and that any person entering into possession without such permission cannot claim to be Sivaijamaidar. The Special Court opined that the possession of the respondents cannot be treated as permissive because notices Ex.B-2 and Ex.B-6 were issued to them before filing application under the Land Grabbing Act and in any case, their plea of permissive possession was destructive of their claim of having acquired title by adverse possession. 27. During the pendency of the writ petition, the Division Bench of the High Court appointed two sets of Advocate Commissioners to ascertain the nature of the schedule land, considered their reports and concluded that land occupied by Gonda ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hostile to the State as they have established the ingredients, namely the nature of possession as adequate, in continuity, publicity and extent. The authorities did not object for such continuous possession and enjoyment. As mentioned earlier the principles of adverse possession by tacking will apply to the case of the petitioners. Thus, the petitioners have perfected their title over the schedule property by adverse possession. 29. In our view, even though by making reference to the judgment of this Court in Syed Yakoob v. K.S. Radhakrishnan and others (supra), the High Court has given an impression that it was aware of the limitations of certiorari jurisdiction under Article 226 of the Constitution of India, a critical analysis of the impugned order makes it clear that the High Court exceeded its jurisdiction and committed serious error by interfering with the well articulated and well reasoned concurrent findings recorded by the Special Tribunal and the Special Court that Gonda Mallaiah had illegally occupied the Government land and after his death, the respondents continued with the illegal possession and as such they were liable to be treated as land grabbers within the m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... authorised occupation of public land by unscrupulous elements, who act like vultures to grab such land, raise illegal constructions and, at times, succeeded in manipulating the State apparatus for getting their occupation/possession and construction regularized. It is our considered view that where an encroacher, illegal occupant or land grabber of public property raises a plea that he has perfected title by adverse possession, the Court is duty bound to act with greater seriousness, care and circumspection. Any laxity in this regard may result in destruction of right/title of the State to immovable property and give upper hand to the encroachers, unauthorised occupants or land grabbers. 30. In State of Rajasthan v. Harphool Singh (Dead) through Lrs. 2000 (5) SCC 652, this Court considered the question whether the respondents had acquired title by adverse possession over the suit land situated at Nohar-Bhadra Road at Nohar within the State of Rajasthan. The suit filed by the respondent against his threatened dispossession was decreed by the trial Court with the finding that he had acquired title by adverse possession. The first and second appeals preferred by the State Governmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s from wrongful claims or misappropriation. 32. Before concluding, we may notice two recent judgments in which law on the question of acquisition of title by adverse possession has been considered and reiterated. In Annakili v. A. Vedanayagam 2007 (14) SCC 308, the Court observed as under:- Claim by adverse possession has two elements: (1) the possession of the defendant should become adverse to the plaintiff; and (2) the defendant must continue to remain in possession for a period of 12 years thereafter. Animus possidendi as is well known is a requisite ingredient of adverse possession. It is now a well-settled principle of law that mere possession of the land would not ripen into possessory title for the said purpose. Possessor must have animus possidendi and hold the land adverse to the title of the true owner. For the said purpose, not only animus possidendi must be shown to exist, but the same must be shown to exist at the commencement of the possession. He must continue in the said capacity for the period prescribed under the Limitation Act. Mere long possession, it is trite, for a period of more than 12 years without anything more does not ripen into a title. 33. ..... 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