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TMI Blog2009 (3) TMI 1073X X X X Extracts X X X X X X X X Extracts X X X X ..... : [2002]1SCR651 and N. Srinivasa Rao v. Special Court under the A.P. Land Grabbing (Prohibition) Act and Ors. MANU/SC/8051/2006 : AIR2006SC3691 . 2. Before, however, adverting to the said question, we may notice some salient features of the said Act. 3. 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 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 said Act was enacted with a view to prohibiting the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of taking decisions. Sub-section (5D) of Section 7 of the Act reads as under: (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 there under 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 prop ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns) as it deems fit. X X X (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 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; ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or agreement or decree or order of a court of any other tribunal or authority. 15. Rule making power is vested in the State in Section 16 of the Act. Section 17A provides for review of the judgment and order passed by the special court under Section 8. Section 17B provides for guidelines for interpretation of the Act as contained in Schedule appended thereto. 16. The Government of Andhra Pradesh made rules in exercise of its power conferred by Sub-section (1) of Section 16 of the Act known as the Andhra Pradesh Land Grabbing (Prohibition) Rules, 1988 (for short the Rules ). Rule 5 lays down the procedure for suo motu action. Rule 6 provides for verification of application. Rule 7 mandates that the Special Court before taking cognizance of the case is to give notice in form 2A by publishing it in the Andhra Pradesh Gazette. Sub-section (2) thereof makes a similar provision in relation to the Special Tribunal. Rules furthermore provide for notice to the person interested as also notice to the land grabbers. It provides for filing of a counter affidavit. Rule 10 provides for the application of the Code of Civil Procedure in the matters as provided for therein. Rule ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as civil court or the court of sessions as provided for in the Code of Civil procedure and Code of Criminal Procedure, the Act provides for transfer of cases to the Tribunals in relation to the matters pending before any court of law relating to land grabbing. The Act also contains a non-obstante clause. 23. The Special Courts and Tribunals, indisputably are entitled to determine any question or issue including the question of title or possession in the proceedings initiated before it. Special Courts and the Tribunal not only have trappings of a court but also of a civil court and, thus, are entitled to determine complicated questions of title. 24. Would the question of adverse possession be beyond the purview of its jurisdiction is the question. There appears to be an apparent conflict in the decision in Konda Lakshmana Bapuji (supra) and N. Srinivasa Rao (supra). Whereas in the former, the defence of adverse possession had specifically been gone into holding that the appellant therein had acquired indefeasible title by adverse possession, opining: 17. It is pertinent to note that mere allegation of an act of land grabbing is sufficient to invoke the ju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e by granting liberty to all or any of the respondents to take appropriate proceedings by approaching a competent civil court, if they claim title on the basis of adverse possession. 28. Mr. M.N. Rao, learned senior counsel appearing on behalf of the appellant, would submit that the Tribunal being not a Court and as the protections afforded to a defendant in a civil suit have been taken away by reason of the provisions of the said Act, they require strict construction. Jurisdiction of the Civil Court having been expressly ousted and in any event, the Tribunal and/or special court being not an alternative efficacious complicated question in regard to adverse possession, it was urged, must be held to be beyond the purview of the Tribunal. 29. Mr. Anoop G. Chaudhary, learned senior counsel appearing on behalf of the respondent, on the other hand, would contend that the said Act being a special law having been enacted to deal with special circumstances and providing for a high powered tribunal, it must be held to have the jurisdiction to deal with a question of adverse possession. Acquisition of an indefeasible title by adverse possession, the learned Counsel would su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Evidence Act would also be applicable. It is true that burden of proof is on the noticee being an alleged land grabber, but the same by itself would not mean that it is an interim Tribunal vis-`-vis the civil court. Enactment of such a provision, moreover, was within the competence of the Legislature. Only because burden of proof is on the noticee, the same would not mean that he has been deprived of his right to defend himself in the proceedings. Burden of proof is in the realm of procedural law. By reason of such a provision, substantive right of the parties on an immovable property is not taken away. Jurisdiction is exercised by the Tribunal and/or Special Court upon arriving at a satisfaction in regard to existence of jurisdictional fact. Even in terms of Article 65 of the Schedule appended to the Limitation Act, 1963 in the event, the plaintiff proves his title, the burden of proof would be on the defendant to show that he has acquired title by adverse possession. See Annakili v. A. Vedanayagam and Ors. AIR2008SC346 . 35. The defendant in all circumstances, therefore, would be entitled to prove that he is lawfully entitled to possess the land. No law says that if a ne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r 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. 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. 42. 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 entitlement to remain in possession would be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 45. For determination of such an issue, the Special Court will be entitled to take into consideration not only the rival claims of the parties, but also the earlier round of litigation, if any, and subsequent conduct of the proceedee himself. 40. We agree with the legal principles laid down in the said decision and are of the considered view that the Tribunal/Special Court constituted under the Act has the requisite jurisdiction to go into the question of adverse possession. 41. We are not oblivious of a decision of this Court in Government of Andhra Pradesh v. Thummala Krishna Rao and Anr. [1982]3SCR500 wherein it was held that a question of title could not properly be decided in a summary enquiry contemplated by Sections 6 and 7 of the A.P. Land Encroachment Act, 1905. In that case, the principal question, which arose for consideration, was as to whether the property in question was in possession of the family of one Habibuddin for a long time and, thus, the same had not vested in the Government by reason of a land acquisition proceeding initiated for acquisition of the land for Osmania University. In that case, Osmania University filed a suit for posse ..... X X X X Extracts X X X X X X X X Extracts X X X X
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