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TMI Blog2010 (12) TMI 1187X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 - 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. 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 gra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... perty 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: (a) Mohd. Hussain executed the registered Sale Deed dated 5th February, 1969 in respect of the disputed property in favour of the appellant 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 dated 16th 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 5 of 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 dependant 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cify. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent. It is also to be noted that the registered Sale Deed referred to above 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 9341 sq.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 wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ter, 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, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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