HON’BLE SRI JUSTICE A.GOPAL REDDY and HON’BLE SRI JUSTICE G.V.SEETHAPATHY DT. 18 -6-2010 W.P.Nos.28592/2009 and 28643/2009 W.P.Nos.28592/2009 K.Sruti …Petitioner V. 1 1.P.R. Rajeswari and others ..Respondents The Court made the following: HON’BLE SRI JUSTICE A.GOPAL REDDY AND HON’BLE SRI JUSTICE G.V.SEETHAPATHY W.P.Nos.28592/2009 and 28643/2009 COMMON ORDER: (Per the Hon’ble Sri Justice A. Gopal Reddy) These two writ petitions under Art.226 of the Constitution of India are filed for issuance of writ of certiorari to quash the order of the Special Court under A.P. Land Grabbing (Prohibition) Act, 1982 at Hyderabad (for short “the Special Court”) taking cognizance of the case under Sec. 8(1) of the A.P. Land Grabbing (Prohibition) Act,1982 (for short “the Land Grabbing Act”) and also determining of criminal liability in LGC No.28/2009 dt 23-6-2009 and consequential proceedings dt. 9-12- 2009 passed in CC No.1/2009 by the Special Court taking cognizance of the offence under Sections 3 and 4 of the Land Grabbing Act and Sections 420, 447 IPC against the petitioners herein respectively. The brief facts, which give rise to filing of these writ petitions, are as under: Respondents 1 and 2 herein filed LGC No.28/2009 before the Special Court against the writ petitioner in both the writ petitions, the third respondent, and District Revenue Officer-cum-Person-in-charge of Industrial Employees’ Co-operative House Building Society, Medak District at Sangareddy stating that the Industrial Employees Co-operative House Building Society Ltd., was registered under the provisions of A.P. Co-operative Societies Act (for short “the Society”) with an object to provide house sites to its members, of which the third respondent herein, namely, V.Narayana Rao, was the President of the Society. The Society purchased Ac.5-30 guntas of land in S.No.1118 of Ameenpur village and some other land in S.Nos. 27 to 31, 948 to 954, 968 to 970, 990 to 1020, 1054, 1056 to 1066, 1029, 1030, 1033, 1034, 1110 to 1118 in Beeramguda, Naneguda and Ameenpur villages and prepared layout plan making the land into plots divided into five blocks and obtained conversion of land use from the District Collector vide L.P.No.101/1774/90 dt. 30-6-1990. Out of which, the applicants, respondents 1 and 2 herein purchased plot Nos.93 and 92 in Block-E situated in S.No.1118 of Ameenpur village under registered sale deed Nos.3668/85 and 3674/85 dt. 4-4-1985. They were put in possession of the plots purchased by them by the Society. As the Society has to develop the land by laying roads etc., they were under the management of the society. While things stood thus, the President of the vendor’s society-third respondent herein had fraudulently and in collusion with the writ petitioner got executed a registered sale deed for the land in dispute along with some other land totaling to Ac.11-24 guntas on 9-2-1998 vide registered sale deed bearing Document No.2395/1998 registered in the office of Joint Sub-Registrar-I, Sangaredddy. Taking advantage of the sale deed obtained in her favour, the writ petitioner encroached into the plots purchased by respondents 1 and 2 herein, which is a part of Ac.5-38 guntas in S.No.1118 of Ameenpur village, and constructed a compound wall. Thus, the writ petitioner and the third respondent committed an act of land grabbing under a scheme. Writ petitioner’s possession of the schedule property is illegal and without any title. When the respondents 1 and 2 wanted to occupy the schedule property, the writ petitioner objected for the same and resisted from entering into the schedule property, by putting up her claim. Hence, they made a representation to the District Collector, Medak. The third respondent and 6th respondent do not have any right whatsoever over the suit schedule property since they have already parted with the property by executing a regular sale deed in favour of the applicants. Cause of action for filing the above LGC has arisen on 4-4-1985 when the applicants purchased the suit schedule property; on 9-2-1998 when the writ petitioner fraudulently got the sale deed and grabbed the property thereafter in the month of September, 2007; when the applicants came to know about fabricated sale deed and on 29-10-2007 when they made an application to the District Collector. The suit schedule property is situated in Ameenpur village, Patancheru Mandal, Medak District, which comes under the notified area of the territorial jurisdiction of the Special Court. The above LGC is filed by the respondents 1 and 2 herein to declare them as owners of plot Nos.93 and 92 measuring 500 sq.yards each; to declare the writ petitioner, third respondent and other respondent as land grabbers; to punish them under Sections 3 and 4 of the Land Grabbing Act and put the applicants into vacant possession of the schedule property. On filing the above LGC, the Special Court called for a report from the Tahsildar, Patancheru Mandal, Medak District. On Tahsildar submitting his report dt. 11-6-2009, the Special Court by the impugned orders dt.23-6-2009 took cognizance of the case under Sec. 8(1) of the Land Grabbing Act opining that initiation of criminal proceedings cannot be deferred till decision is given in civil proceedings and criminal liability should also be determined simultaneously in respect of the writ petitioner and the third respondent. The Special Court by the impugned order while issuing notice to the respondents therein ie., the writ petitioner, third respondent and another called for objections by 27-7-2009. The Special Court also directed the Office to place the papers before the Chairman for entrustment of criminal trial against the writ petitioner and the third respondent. On Chairman entrusting the matter, the Special court by the impugned order dt.2-12-2009, after perusing the affidavits of the complainants ie., respondents 1 and 2 herein and Form No.1 filed along with LGC No.28/2009 which was sent to this court along with the order dt. 23-6-2009, the Special Court by order dt. 2-12-2009 took cognizance of the offences under Sections 3 and 4 of the Land Grabbing Act and Sections 420 and 447 IPC and issued summons to the writ petitioner and the third respondent. Questioning the same, the above two writ petitions are filed. Sri E. Manohar, learned Senior Counsel for the petitioner in both the writ petitions argued that it is a total non-application of mind by the Special Court while taking cognizance of the case under Sec. 8(1) of the Land Grabbing Act as single application is not maintainable. Further the location of the land is beyond the Corporation limits, therefore, the Special Court lacks territorial jurisdiction to take cognizance of the case. It was nextly argued that LGC case was filed beyond 12 years as sale deed in favour of the petitioners was executed on 9-2-1996 and the above case was filed on 16-12-2008, therefore, the Special Court erred in taking cognizance of the case and to determining criminal liability. In support the above submissions; strong reliance is placed on the Full Bench Judgment of this court in MOHD. SIDDIQ ALI KHAN V. M/S. SHAHSUN FINANCE LIMITED[1]. Smt. Manjiri S. Ganu, learned counsel for the respondents 1 and 2 while supporting the impugned orders would contend that the respondents 1 and 2- applicants in LGC have specifically pleaded that petition was within the period of limitation. After taking cognizance, notice of taking cognizance as contemplated under proviso to sub-section (6) of Section 8 of the Land Grabbing Act has been issued, for which the writ petitioner filed her counter and having submitted to the jurisdiction, the writ petitioner cannot question the orders of the Special Court taking cognizance of the case and the same has to be decided on merits. In support of her submissions reliance is placed on the judgments of this court in CHENNA BASVANNA V. SPECIAL COURT[2] and SHALIVAHANA BUILDERS (P) Ltd. V. S.G. CO-OP. HOUSING SOCIETY[3].. In the light of the above submissions, the points that arises for consideration in these writ petitions are : 1. Whether the Special Court committed any illegality in taking cognizance of the case under Sec. 8(1) of the Land Grabbing Act? 2. Whether taking cognizance of the offences under Sections 3 and 4 of the Land Grabbing Act and Sections 420 and 447 IPC against the writ petitioners and the third respondent is liable to be interfered with or not? Point No.1: The main grievance of the writ petitioner for taking cognizance of the case under the provisions of the Land Grabbing Act appears to be that no reasons are assigned and further the impugned orders do not disclose any reasons for initiation of criminal proceedings simultaneously. Sale deeds under which the applicants, respondents 1 and 2 herein, claiming property are void and illegal as applicants are not members of the Society and there is no evidence to show that they were members as such nor any map to physically demarcate the plots alleged to have been purchased by them and there is no recital in the sale deed delivering possession of particular plots out of the sanctioned lay-out. The respondents 1 and 2, applicants in LGC, who initiated proceedings under the provisions of the Land Grabbing Act categorically asserted in the concise statement of facts that they were put in possession of the property purchased by them, and as the society has to develop the land by laying roads they were under the management of the Society. While so, the President of the Vendor society, second respondent in LGC had fraudulently and in collusion with the writ petitioner got executed a registered sale deed for the land in dispute along with some other land. Therefore, the writ petitioner’s possession of the schedule property is illegal and without any title. When the applicants wanted to occupy the property, the writ petitioner objected for the same and resisted from entering into the schedule property. In the month of September,2007 they came to know about the fabricated sale deed. The schedule property is situated in Ameenpur village, Pantancheru Mandal, Medak District, which comes under the notified area of territorial jurisdiction of the Special Court under the Land Grabbing Act. Both the counsel have placed reliance on the judgment of the Full Bench of this court in MOHD. SIDDIQ ALI KHAN (1 supra), wherein Justice B.Sudershan Reddy (as he then was) speaking for the Full Bench, on point No.2, namely, Does the statute enjoin the Special court and the Special Tribunal to take cognizance of every case and try all cases brought before it except the one which it rejects as frivolous and vexatious?, after extensively referring to the provisions of the Land Grabbing Act, and after referring to the rejection of the contention advanced in CHENNA BASVANNA (2 supra) that the Special Court ought not to have taken the cognizance of the application filed under Sec. 8(1) of the Land Grabbing Act having regard to the involvement of the extent of the land and its value holding that the discretion to be exercised under sub-section (1-A) is left to the good faith of the Special Court and it would not be possible for this Court to define standards either to take cognizance or not to take cognizance, held that the Chenna Basvanna's case (supra) is not an authority for the proposition that the Special court is bound to take cognizance of every case whenever an allegation of land grabbing is made, even if, the averments and the allegations made in the application do not attract the provisions of the Act. The Full Bench further observed that all the allegations made in the application, even if, to be taken true, do not disclose and satisfy the basic ingredients of any offence, so far as criminal cases are concerned and the cause of action in civil cases, the Court is bound to reject the case. The Full Bench after referring to the observations made by the Supreme Court in MR. DHANLAKSHMI V. R.PRASANNA KUMAR AND OTHERS (1990(1) CRIMES 26 (SC) that it is not necessary that there should be a meticulous analysis of the case, before the trial to find out whether the case would end in conviction or not, the complaint has to be read as a whole and after quoting the observation made by the Supreme Court in VIJAI PRATAP SINGH V. DUKH HARAN NATH SINGH (AIR 1962 SC 941), namely,” …..If accepting those allegations as true no case is made out for granting relief no cause of action would be shown and the petition must be rejected. But in ascertaining whether the petition shows a cause of action the court does not enter upon a trial of the issues affecting the merits of the claim made by the petitioner. It cannot take into consideration the defences which the defendant may raise upon the merits; nor is the court competent to make an elaborate enquiry into doubtful or complicated questions of law or fact. If the allegations in the petition, prima facie, show a cause of action, the court cannot embark upon an enquiry whether the allegations are true in fact, or whether the petitioner will succeed in the claims made by him. By the statute the jurisdiction of the court is restricted to ascertaining whether on the allegations a cause of action is shown: the jurisdiction does not extend to trial of issues which must fairly be left for decision at the hearing of the suit", held as under: “The Special Court is required to carefully scrutinize the allegations made in the application, in order to satisfy itself that the allegations made in the application reveal and attract the ingredients of land grabbing. Mere statement or assertion that the respondents have grabbed the land is not enough.” While holding so, it was further held that the special Court is entitled to exercise the power under Order VII, Rule 11 of the Code of Civil Procedure, and reject the application, if the allegations made therein do not disclose cause of action and the case is frivolous and vexatious one. Under Point No.3, namely, Whether the Special Court is required to follow the procedure under Rules 6 and 7 of the Andhra Pradesh Land Grabbing (Prohibition) Rules 1988, before taking cognizance of a case?, the Full Bench after referring to the judgment of this court in SHALIVAHANA BUILDERS PVT.LTD., (3 supra) wherein this court took the view that “in order to decide as to whether the application filed prima facie is frivolous or vexatious and in order to enable the Special Court to form its opinion the court may look into the report of the Mandal Revenue Officer having jurisdiction over the area since such report essentially contains the details of the correctness of the statements made in the application and the facts relating to ownership, actual possession and user of the land concerned, etc. It is in this background the verification of application and submission of the report by the Mandal Revenue Officer or the authorized officer, as the case may be, are to be considered as mandatory requirements. In the absence of such report the Court may not be in a position to form its opinion in order to decide as to whether the application filed is a fit case to be taken cognizance of. The objections preferred by the interested persons of any pursuant to notice issued in accordance with the Rule 7 may also have to be taken into consideration for the purposes of forming the opinion by the Special Court that it is a fit case to be taken cognizance of. " held as under” “The notice under Form II-A and II-B in accordance with the amended Rules is required to be issued only after taking cognizance of the case under the Act and not before taking cognizance of the case. Therefore, the question of considering the objections preferred by the interested persons pursuant to the notice issued in accordance with Rule 7 of the Rules for the purpose of deciding as to whether a case is a fit one to be taken cognizance of does not arise. That portion of the judgment rendered in ignorance of the amended Rule 7 of the rules is per incuriam.” It was further held thus: “The report to be submitted by the Mandal Revenue Officer is required to contain the correctness of the statements made in the applications with regard to columns 1 to 15 and 19. ……The report merely provides inputs enabling the Special court to apply its mind to the fact situation for the purposes of taking cognizance of the case.” In view of the above, the Special Court is under an obligation to scrutinize the allegations made in the application, in order to satisfy itself that the allegations made in the application reveal and attract the ingredients of land grabbing and the allegations made as referred to above constitute element of land grabbing. It is well settled whether a plaint discloses a cause of action or not is essentially a question of fact, but whether it does or does not must be found out from reading the plaint itself. For the said purpose the averments made in the plaint in their entirety must be held to be correct. The test is as to whether if the averments made in the plaint are taken to be correct in its entirety, a decree would be passed. (See: LIVERPOOL & LONDON S.P. & I ASSOCIATION LTD. V. M.V. SEA SUCCESS I AND ANOTHER= (2004)9 SCC 512). The averments in the plaint as a whole have to be taken to find out whether clause (d) of Rule 11 of Order VII was applicable. It is not permissible to cull out a sentence or a passage and to read it out of the context in isolation. Although it is the substance and not merely the form that has to be looked into, the pleading has to be construed as it stands without addition or subtraction of words or change of its apparent grammatical sense. (see: POPAT AND KOTECHA PROPERTY VS. STATE BANK OF INDIA STAFF ASSOCIATION= (2005) 7 SCC 510). In the light of the law declared as aforementioned, when we scrutinize the allegations made in the annexure referred to above, it would clearly disclose that the applicants were put in possession of the property purchased by them and the third respondent had fraudulently and in collusion with the writ petitioner got executed a registered sale deed and taking advantage of the said sale deed the writ petitioner grabbed the property by constructing a compound wall and her possession as such is illegal and without any title. In view of the specific averments, the matter requires to be adjudicated by the Special Court on the said allegations alone but not on the defence put forth by the writ petitioner in her counter to the above LGC. We do not see any merit in the contention advanced by the learned counsel for the petitioner that the Special Court has not at all applied its mind while taking cognizance of the case. Further, it is fallacy to contend that the location of the land is beyond the Corporation limits, the Special Court lacks territorial jurisdiction to take cognizance of the case in view of the pleading that the schedule property comes under the notified area of territorial jurisdiction of the Special Court. The said fact has not been controverted in the counter filed before the Special Court by the writ petitioner, and it is for the Special Court to decide the issue with regard to the notification notifying the area- conferring jurisdiction. Point No.2: Section 3 of the Land Grabbing Act declared the land grabbing as unlawful and any activity connected with or arising out of land grabbing shall be an offence punishable under the Act. Section 4 of the Land Grabbing Act prohibits land grabbing, and it reads as under: (1) No person shall commit or cause to be committed land grabbing. (2) Any person who, on or after the commencement of this Act, continues to be in occupation, otherwise than as a lawful tenant, of a grabbed land belonging to the Government, local authority, religious or chartiable institution or endowment including a wakf, or other private person, shall be guilty of an offence under this Act. (3) Whoever contravenes the provisions of sub section (1) or sub section (2) shall on conviction, be punished with imprisonment for a term which shall not be less than six months but which may extend to five years, and with fine which may extend to five thousand rupees. Section 5 contemplates penalty for other offences in connection with land grabbing. It reads as under: “ Whoever, with a view to grabbing land in contravention of the provisions of this Act or in connection with any such land grabbing (a) sells or allots, or offers or advertises for sale or allotment, or has in his possession for the purpose of sale or allotment any land grabbed; (b) instigates or incites any person to commit land grabbing; (c) uses any land grabbed or causes or permits knowingly to be used for purposes, connected with sale or allotment; or (d) causes or procures or attempts to procure any person to do any of above mentioned acts, shall on conviction, be punished with imprisonment for a term which shall not be less than six months but which may extend five years and with fine which may extend to five thousand rupees. Under Section 9, the Special Court shall be deemed to be a Civil Court and a Court of Session and shall have all the powers of a Civil Court and a Court of Session. Since section 5 contemplates penalty for offences in connection with the land grabbing as enumerated under sub-sections (a) to (d) of Section 5. Taking cognizance of the offence under Section 420 and 447 IPC by the Special Court is beyond its jurisdiction. For the offence under Section 420 IPC, the maximum punishment that can be imposed is seven years and fine and for the offence under Section 447 IPC, namely, criminal trespass, punishment may be extended to three months or with fine which may extend to five hundred rupees, or with both. Offence under section 420 IPC is triable by Magistrate of First Class, whereas offence under Section 447 IPC is triable by any Magistrate. But Section 9 of the Land Grabbing Act will only authorize the Special Court to exercise the powers of a Court of Session while dealing with the offences under the Land Grabbing Act, but it had no jurisdiction to try the offences under Sections 420 and 447 IPC, which are exclusively triable by Magistrate as referred to above. Therefore, we hold that taking cognizance of the offences under Sections 420 and 447 IPC by the Special Court is beyond its jurisdiction, and the impugned order dt. 2-12-2009 passed by the Special Court to the extent of taking cognizance of the offences under sections 420 and 447 IPC is liable to be set-aside. From the conspectus discussions and for the aforementioned reasons on point Nos.1 and 2, we do not see any merit in WP No.28592/2009 and the same is accordingly dismissed. WP No.28643/2009 is partly allowed quashing the impugned order dt. 2-12-2009 to the extent of taking cognizance of the offences under Sections 420 and 447 IPC. There shall be no order as to costs. ___________________ A. GOPAL REDDY, J ____________________ G.V.SEETHAPATHY,J Date: 18-6-2010 kmr [1] 2005(2) ALT 503 (FB) [2] 2003(2) ALD 607 (DB) [3] 2003(2) ALD 476 (DB)