TMI Blog2011 (3) TMI 1801X X X X Extracts X X X X X X X X Extracts X X X X ..... fore taking cognizance of a case under the Andhra Pradesh Land Grabbing (Prohibition) Act, 1982 (for short 'the Act') and whether it is mandatory for the Special Tribunal or the Special Court to publish a notification in the Gazette notifying the fact of cognizance of a case under the Act. 4. The facts in Civil Appeal arising out of SLP (C) No. 23821 of 2008 are that the Appellant R.S. Murthy filed L.G.O.P. No. 570 of 1992 before the Special Tribunal, Ranga Reddy District, alleging that the Respondents German Reddy and Tresa German Reddy had demolished the compound wall of the Appellant constructed over his land measuring 606 sq. yards in Plot No. 439 in Survey No. 33 of Guttalabe gumpet Village in Ranga Reddy District, with a view to grab the same and was raising structures thereon and prayed inter alia that the Appellant be declared as the owner of the land and be given possession of the land and the Respondents be declared as land grabbers and punished under the Act. Respondents filed a counter affidavit and denied the allegations made by the Appellant. The Special Tribunal framed issues and commenced the trial. The Special Tribunal appointed an Advocate Commissioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... situated at Waddepalli village on the P.W.D. Main Road from Hanamkonda to Hyderabad. The Respondents G. Veera Swamy and others filed their counter affidavits in the said case denying the allegations of land grabbing. The parties produced their oral and documentary evidence and by order dated 03.07.1996, the Special Tribunal allowed the land grabbing case and directed the Revenue Officer, Warangal, to evict the Respondents from the land and put the Appellant in possession of the land. Aggrieved, the Respondents filed appeal before the Special Court at Hyderabad and the Special Court dismissed the appeal on 29.10.1997. The Respondents then challenged the orders passed by the Special Tribunal in Writ Petition No. 8613 of 2002 in the High Court. The High Court after holding that no report had been called for from the Mandal Revenue Officer under Rule 6 of the Rules and no Gazette notification had been published under Rule 7 of the Rules by the Special Tribunal allowed the Writ Petition by the impugned order dated 04.06.2007 and set aside the impugned orders of the Special Court and the Special Tribunal and remitted the matter to the Special Tribunal, Warangal, for a fresh disposal on m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r A.P. Land Grabbing (Prohibition) Act, Hyderabad and Ors. (5) ALD 184 (DB) holding that Rule 6 of the Rules does not contain a mandate to refer the application to the Mandal Revenue Officer and failure to refer the application to the Mandal Revenue Officer for verification and calling for his report would not have any impact on the facts of that case and would not vitiate the entire proceedings. 7. Mr. Narasimha and Mr. Shetty next submitted that the proviso to Sub-section (4) of Section 7A of the Act states that the Special Tribunal shall by notification specify the fact of taking cognizance of the case under the Act and accordingly Rule 7 of the Rules provides that the Special Court or the Special Tribunal shall after taking cognizance of the case under the Act give notice in Form II-A or Form II-B by publishing it in the Andhra Pradesh Gazette, but the use of the word 'shall' in the proviso to Section 7 of the Act or in Rule 7 of the Rules does not make the requirement of publication of the case in the Gazette after the Special Court or Special Tribunal takes cognizance of the case mandatory. They cited the decisions of this Court in P.T. Rajan v. T.P.M. Sahir and Or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ;may' out of deference to the high status of the authority on whom the power and obligation are intended to be conferred and imposed. He also relied on Govindlal Chhaganlal Patel v. The Agricultural Produce Market Committee, Godhra and Ors. (1975) 2 SCC 482 wherein this Court has held that the question as to whether a statue is mandatory or directory depends upon the intent of the Legislature and not upon the language in which the intent is clothed and, therefore, the use of the word 'shall' or 'may' is not conclusive on the question where the particular requirement of law is mandatory or directory. He cited the decision of this Court in V. Laxminarasamma v. A. Yadaiah (Dead) and Ors. (2009) 5 SCC 478 holding that a report of the Revenue Officer who is the man on the spot is required to be obtained by the Special Court or by the Special Tribunal under the Act. He submitted that the view taken by the Full Bench of the Andhra Pradesh High Court in Mohd. Siddiq Ali Khan v. Shahsun finance Ltd. (supra) that reference of every application under Sub-section (1) of Section 8 of the Act or under Sub-section (1) of Section 7A of the Act for local inspection or verificati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pecial 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. (2) Save as otherwise provided in this Act, a Special Tribunal shall, in the trial of cases before it, follow the procedure prescribed in the Code of Civil Procedure, 1908 (Central Act 5 of 1908). (3) An appeal 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; Provided that the Special Court may entertain an appeal after the expiry of the said period of sixty days, if it is satisfied that the Appellant had sufficient cause for not preferring the appeal within the period of sixty days. (4) Every finding of the Special Tribunal with regard to any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aving jurisdiction, as if the cause of action on which such suit or proceeding is based had arisen after such commencement. (7) Every case brought before the Special Tribunal shall be disposed of finally by the Special Tribunal, as far as possible, within a period of six months from the date of its having been brought before it. (8) The Special Tribunal shall have all the powers of a Civil Court for purposes of review. Section 8. Procedure and powers of the Special Courts: (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; (1-A) The Special Court shall, for the purpose of taking cognizance of the case, consider the location or extent or value of the land alleged to have been grabbed or of the substantial nature of the evil involved or in the interest of justice required or any other relevant matter: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a witness except on his own request in writing or his failure to give evidence shall be made the subject of any comment by any of the parties or the special court or give rise to any presumption against himself or any person charged together with him at the same proceeding.] (3) [* * * Omitted] (4) Every case under Sub-section (1) shall be disposed of finally by the Special Court, as far as possible, within a period of six months from the date of institution of the case before it. (5) [* * *Omitted] (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 [* * * Omitted] [Provided that the Special Court shall, by notification specify the fact of taking cognizance of the case under this Act. Such notification shall state that any objection which may be received by the Special Court from any person including the custodian of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d for the purpose of the provisions of the said enactments, Special Court shall be deemed to be a Civil Court, or as the case may be, a Court of Session and shall have all the powers of a Civil Court and a Court of Session and the person conducting a prosecution before the Special Court shall be deemed to be a Public Prosecutor. Rule 6. Verification of Application: (1) Every application filed under Sub-section (1) of Section 8 of the Act or every case taken cognizance of suo motu by the Special Court or an application filed under sub-sect.(1) of Section 7A of the Act, before the Special Tribunal, may be referred for local inspection or verification or both by the Mandal Revenue Officer having jurisdiction over the area or by any other Officer of the Government authorized by the Court in this behalf. (2) The Mandal Revenue Officer or the other Officer to whom the application has been referred under Sub-rule (1) shall make or cause to be made an inspection or verification or both, as soon as may be practicable and shall submit a full and complete report within two weeks from the date of receipt of order with reference to Revenue Records and facts on ground as to the following ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ould be construed to mean a command. Hence, we are called upon to decide whether the word 'may' used in Sub-rule (1) of Rule 6 of the Rules confers only a discretion upon the Special Tribunal or the Special Court to refer an application filed before it or a case to the Mandal Revenue Officer or whether this discretion of the Special Tribunal or the Special Court is coupled also with a duty or an obligation to refer the application filed before it or the case to the Mandal Revenue Officer and we have to decide this question by examining the context in which the word 'may' has been used and the context would mean Rule 6 of the Rules and Sections 7A and 8 of the Act and the object of these statutory provisions. 12. A reading of Rule 6 of the Rules and, in particular, sub- rules (1) and (2) thereof, indicates that the object of referring the application under Sub-section (1) of Section 7A or sub- section (1) of Section 8 of the Act to the Mandal Revenue Officer is to get full and complete report from the Mandal Revenue Officer after local inspection or verification on the correctness of the statements made in the application and the facts relating to ownership, actua ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Civil Procedure, 1908 and the Code of Criminal Procedure, 1973 insofar as they are not inconsistent with the provisions of the Act, shall apply to the proceedings before the Special Court. The provisions of the Code of Civil Procedure, 1908 and the Code of Criminal Procedure, 1973 relating to trials, such as examination and cross-examination of witnesses and production and acceptance of documents are also available to the Special Court for ascertaining the truth or otherwise of the statements made in the application. 13. We are thus of the considered opinion that the object of Rule 6 of the Rules is to assist the Special Tribunal or the Special Court to arrive at a correct decision on the claims and allegations made in the application under Sub-section (1) of Section 7A and Sub-section (1) of Section 8 of the Act to the Special Tribunal or the Special Court and if this very object can be achieved without referring the application of the case to the Mandal Revenue Officer, it may not be necessary for the Special Tribunal or the Special Court to make a reference to the Mandal Revenue Officer and therefore there is no compelling duty on the Special Tribunal or the Special Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aking cognizance of the case under the Act give notice in Form II-A/II-B by publishing it in the Andhra Pradesh Gazette. The word 'shall' used in the proviso to Sub-section (4) of Section 7A and the proviso to Sub-section (6) of Section 8 of the Act as well as in sub-rules (1) and (2) of Rule 7 of the Rules indicates that compliance with requirement of notification or publication of the notice in the Andhra Pradesh Gazette of the case after the Special Tribunal or the Special Court takes cognizance is mandatory. The use of the word shall in these provisions, however, is not conclusive of the mandatory nature of the provisions and we must look at the main provisions of sub- section (4) of Section 7A and Sub-section (6) of Section 8 of the Act to find out the purposes for which such notification or publication of notice is to be made. As has been explained by Justice G.P. Singh in Principles of Statutory Interpretation, 12th Edition 2010 at page 406-407: The use of word 'shall' raises a presumption that the particular provision is imperative; but this prima facie inference may be rebutted by other considerations such as object and scope of the enactment and the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roceedings and assert his title, ownership or lawful possession over the land, he cannot challenge the proceedings of the Special Tribunal or the Special Court on the ground that the notification or the publication of the notice has not been made in accordance with the Act and Rules. In State Bank of Patiala and Ors. v. S. K. Sharma (1996) 3 SCC 364 this Court relying on Dhirendra Nath Gorai v. Sudhir Chandra Ghosh AIR 1964 SC 1300 has held in para 29 at page 387: But then even a mandatory requirement can be waived by the person concerned if such mandatory provision is conceived in his interest and not in public interest. In the aforesaid case at para 33 at page 389, this Court has further held: 33. .... (1) .... (2) .... (3) In the case of violation of a procedural provision, the position is this: procedural provisions are generally meant for affording a reasonable and adequate opportunity to the delinquent officer/employee. They are, generally speaking, conceived in his interest. Violation of any and every procedural provision cannot be said to automatically vitiate the enquiry held or order passed. Except cases falling under - no notice , no opportunity ..... X X X X Extracts X X X X X X X X Extracts X X X X
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