IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) THURSDAY, THE NINETEENTH DAY OF JUNE TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MR JUSTICE GHULAM MOHAMMED and THE HON'BLE MR JUSTICE C.V.RAMULU WRIT PETITION NO : 4608 of 2008 Between: 1 V.Srinivas S/o. Venkatramana R/o. Plot No. 30, Bhalskarrao Nagar, Phase-II, Sainkpuri, Secunderabad- 94, Hyderabad. 2 Geete Lakshmi W/o. Srinivas R/o. Plot No. 30, Bhaskarrao Nagar, Phase-II, Sainkpuri, Secunderabad- 94, Hyderabad. 3 Dr. RVS Sharma S/o. R.Venkateswara Rao R/o. 1-2-36, Gabanmahal Road, Domalaguda, hyderabad. rep. by GPA Geeta Lakshmi, Petitioner No.2 4 Smt.Shanti Lakshmi W/o. RVS Sharma R/o. 1-2-36,Gaganmahal Road, Domalaguda, Hyderabad rep. by GPA Geeta Lakshmi, Petitioner No.2 ..... PETITIONER(S) AND 1 The Special Court under A.P.Land Grabbing ( Prohibition ), Act, Burugula Ramakrishna Rao Buildings, Tank Bund, Hyderabad, rep. by its Registrar. 2 Vemuri Subhadra W/o. V.Ramachandra Rao r/o. 1512, Mallard Way, Sunnvale 94087 USA, rep. by their GPA holder Vl Padmavathi W/o. VV Subba Rao, r/o. 703, A-Block, Kundanbagh, SP Road, Begumpet, Secunderabad. 3 V.Ramachandra S/o. T.Venkatraman r/o. 1512, Mallard Way, Sunnvale 94087 USA, rep. by their GPA holder Vl Padmavathi W/o. VV Subba Rao, r/o. 703, A-Block, Kundanbagh, SP Road, Begumpet, Secunderabad. 4 J.Kurien S/o. Kurien R/o. 10-3-149, East Maredpally, Secunderabad. 5 ML RaviKumar S/o. ML.Lakshminarasaiah R/o. 1-8-81, Temple Alwal, Malkajgiri Mandal, RR.Dist. 6 Smt. M.Ratna Kumari W/o. ML Srinivas Rao R/o. 1-8-81, Temple Alwal, Malkajgiri Mandal, RR Dist. .....RESPONDENT(S) Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to issue an appropriate writ or order or direction, one in the nature of Writ of Mandamus, i) declaring the action of Respondent-I in taking cognizance or entertaining the LGC No. 14/2005 as illegal, without jurisdiction , and contrary to the provision of the A.P.Land Grabbing ( Prohibition ) Act,1982 and consequently declaring the impugned order dt.18-1-2007 in IA No.235/2006 in LGC No. 14/2005 as arbitrary and illegal and the same maybe set-aside and consequently IA 235/2006 in LGC No.14/2005 may pleased be allowed; ii) costs be awarded to the petitioner, and pass Counsel for the Petitioner:MR.B.MAHENDER REDDY Counsel for the Respondents: Mr.N.Vasudeva Reddy The Court made the following : THE HON'BLE MR JUSTICE GHULAM MOHAMMED and THE HON'BLE MR JUSTICE C.V.RAMULU WRIT PETITION No :4608 of 2008 ORDER: (per Hon’ble Sri Justice Ghulam Mohammed) The writ petition is filed for a writ of Mandamus declaring the action of respondent No.1 in taking cognizance or entertaining LGC No.14/2005 as illegal, without jurisdiction and contrary to the provisions of the A.P. Land Grabbing (Prohibition) Act 1982 (for short “the Act”) and consequently set-aside the impugned order dated 18.1.2007, dismissing I.A.No.235 of 2006 in LGC No.14 of 2005, which was filed by the writ petitioners under Section 8 (2-A) of the Act read with Section 151 CPC before the Special Court under A.P. Land Grabbing (Prohibition) Act, Hyderabad, requesting to reject LGC No.14 of 2005 as the same is not maintainable. 2. Petitioners are claiming the property in Survey No. 597 of Kapra Village, Keesara Mandal, Ranga Reddy District to an extent of 1174 square yards having purchased the same under registered sale deed by the father of the second petitioner in 1972, who in turn, executed gift deed in favour of the petitioners and since then they are in peaceful possession and enjoyment of the property. While so, subsequently, one ML.Srinivasa Rao and ML. Ravi Kumar grabbed their property and the petitioners filed LG OP No.1046 of 1999 and the same was allowed on 12-03-2003. Thereafter, in pursuance of the execution of the decree, they have obtained the possession. 3. While matters stood thus, the respondents 2 and 3 filed LGC No.14 of 2005 claiming property bearing H. No.4- 200/204/A admeasuring 686 square yards situated in Survey No.596 of Keesara Village, Keesara Mandal. The respondents did not advert any allegation attracting provisions of the Act particularly, the element of ‘grabber’ and ‘grabbing’ within the meaning of Sec.2 (d) & (e) of the Act except repeating the words ‘Land Grabber’ and ‘Land Grabbing’. The concise statement clearly discloses that the property was restored to them by way of orders of the court and the application schedule property and the property claimed by them are different and distinct properties and the application schedule property is located in Survey No.596, whereas the property claimed by them is located in Survey No.597. Submitting the same facts, the petitioners filed an application bearing No. I.A No.235 of 2006 for rejection of LGC No.14 of 2005. The petitioners have stated before the Special Court that against the order in LGOP No.1046 of 1999, no appeal has been filed and the order has become final and attained finality. But, however, the Special Court without taking into consideration the above facts, dismissed I.A.No.235 of 2006 by recording a finding that “As seen from the averments made by the petitioners as well respondents in the above I.A, location of application schedule property is essential in this case”. The petitioners submit that identification or location of the property is purely a dispute of civil nature and accordingly it can be adjudicated by civil court and at any rate, it will not attract the jurisdiction of the Special Court. 4. A counter affidavit has been filed by the respondents denying the petition averments. It is averred that they are the owners of the property that was grabbed by the petitioners, and as such, the Special Court has jurisdiction. It is further averred that once the Special Court takes cognizance and issued notice to the opposite party and after their appearance in the matter and filing counter, the petitioners cannot file an application under Section 8-2(A) of the Act and the application has been filed at the stage of commencement of trial. Hence, the application filed by the petitioners before the Special Court is not maintainable in law and the Special Court has rightly dismissed the application. 5. Heard learned counsel for the petitioners and learned counsel for the respondents. 6. The learned senior counsel Sri K.Ramakrishna Reddy, appearing for the petitioners contended that cognizance cannot be taken unless allegations made in the application satisfy and attract the ingredients of definition under Section 2(d) and (e) of the Act and mere repetition of words “land grabbing” would not be enough for taking cognizance of a case. But, however, in this case, the Special court, without following the provisions of the Act, has taken cognizance which is erroneous and arbitrary. Now, the matter is posted for adducing evidence. Learned Senior counsel further submitted that the petitioners are being treated as land grabbers by the respondents, without there being any right. He contended that the petitioners are in lawful possession and enjoyment of the property. The respondents have filed LGC No.14 of 2005 before the Special Court under A.P. Land Grabbing (Prohibition) Act, Hyderabad by giving false information and by fabricating documents and therefore, the same is not maintainable and the dismissal of I.A.No.235 of 2006, in the above LGC, filed by the petitioners, is contrary to law and the same may be set-aside. Learned senior counsel in this regard relied upon decisions reported in E.Achuthan Nair Vs. P. Narayanan Nair and another [1] and Mohd. Siddiq Ali Khan and others Vs. Shahsun Finance Limited, Chennai and another[2] and contended that a civil suit for identity and location of the property is maintainable. Further, he also cited the judgment of this court in writ petition No.2882 of 2008 wherein Mohd.Siddiq Ali Khan’s case(2 supra) was referred. In Mohd.Siddiq Ali Khan’s (2 supra) it was held: “ The objection as to the maintainability and jurisdiction of the Special Court to entertain the application or its act of taking cognizance of the case can be raised by the respondents in the L.G.C. at any time, either at the threshold stage or even after taking cognizance of the case by the Special Court.” “ That unless the allegations made in the application satisfy and attract the ingredients of “land grabber” and “land grabbing” as provided for under Section 2 (d) and (e) of the Act, mere repetition of words “land grabbing” would not be enough for taking cognizance of a case, unless that statement or allegations satisfies both the ingredients- the factum as well as the intention. As has been held in Shlivahana Builders’ case (2003 (2) ALD 476), that an Act of land grabbing involves “ taking of any land belonging to Government etc., or any other private person unauthorisedly, unfairly, greedily, either forcibly, violently, unscrupulously or otherwise but without any lawful entitlement. Taking possession of the land without any lawful entitlement thereto is the sine qua non to hold a person to be a land grabber. It may be noted, to make out a case that a person is a land grabber the applicant must aver and prove both the ingredients - the factum as well as the intention. Unless a person unauthorizedly and without any lawful entitlement thereto enters or intrudes into a land forcibly or otherwise, he cannot be held to be a land grabber. The emphasis is on taking possession without any lawful entitlement.” 7. In E.Achuthan Nair’s case (1 supra) the only question arose before the Supreme Court was that a suit for demarcating the boundary of a property was not maintainable when the plaintiff himself was uncertain about the precise boundary. But however, the Supreme Court held that if the suit is of a civil nature, the court will have jurisdiction to try the suit unless it is either expressly or impliedly barred. A dispute regarding identification of boundary between two adjacent land owners is certainly a dispute of a civil nature and it is not barred either expressly or impliedly. 8. On the other hand, learned counsel for the respondents- Sri N.Vasudeva Reddy has submitted that the respondents are claiming the property in respect of Survey No.596, Keesara Village, Keesara Mandal, to an extent of 686 square yards. They have purchased this property under registered sale deed dated 28-5-1999 and they have got title with regard to the said property. Learned counsel also contended that under the garb of the decree, the petitioners grabbed the property and took possession and it requires full-fledged enquiry. He has drawn our attention to the decision of a Division Bench of this court in Konda Lakshman Bapuji Vs. Government of A.P.,Hyderabad [3] and contended that mere allegation of land grabbing is sufficient to invoke the jurisdiction of Special Court either suo-motu or on an application made by any person or office or authority. In the said decision it was held as under: “A combined reading of these provisions leads to the conclusion that the jurisdiction of the civil court under Section 9 of the Code of Civil Procedure and under the Civil Courts Act is ousted and the Act which is special law will prevail and as such the Special Court will have jurisdiction in respect of the matters dealt with thereunder.” “ The upshot of the above discussion is that the Special Court is a civil court having original as well as appellate jurisdiction having all the trappings of a civil court and also a criminal court having powers of the Court of Session to which the provisions of the Code of Civil Procedure, the A.P. Civil Courts Act and the Code of Criminal Procedure, apply.” 9. We have given our anxious consideration to the submissions of the learned counsel on either side and perused the material made available on record. 10. At the outset, we are of the opinion that the dispute mainly relates to the location of the land, since, even as per the admitted facts, survey numbers claimed by both the parties are different and even the villages are also different. Inasmuch as the survey numbers are located in the border of the either villages, there seems to be some confusion as to the very location of the land. In this regard, it appears, respondents have already filed an application for appointment of Surveyor. At that stage, the present I.A. is filed stating that the very L.G.C. is not maintainable. 11. In the peculiar facts of this case, we are not inclined to go into the merits and demerits of the impugned Order passed by the Special Court. However, since the survey contemplated is pending and unless and until it is completed, the matter cannot be cleared as to the location of the land, whether it is situated in Kapra village of Keesara Mandal or Keesara Village and Mandal. Therefore, we deem it appropriate to set aside the Order dated 18-1-2007 passed in I.A.No.235 of 2006 in L.G.C.No.14 of 2005 on the file of the Special Court and remit the matter back to the Special Court with a direction to decide the said I.A. afresh, on its own merits, after obtaining the report from the Survey Department and taking the same into consideration. 12. Accordingly, the Writ Petition is allowed. No order as to costs. ______________________ GHULAM MOHAMMED,J ​ _____________ C.V.RAMULU, J 19-06-2008 Stp ..... REGISTRAR // TRUE COPY // SECTION OFFICER To 1.2CCs to 2.2CD copies Form-NIC-OGS/WP{KSL} [1] AIR 1987 Supreme Court 2137 [2] 2005 (2) ALT 675(FB) [3] 2002 (2) ALD 56 (SC)