THE HON’BLE SRI JUSTICE GHULAM MOHAMMED & THE HON’BLE SRI JUSTICE VILAS V. AFZULPURKAR WP No.9081 OF 2009 ORDER: ( per Hon’ble Sri Justice Ghulam Mohammed, J ) This writ petition is filed seeking to issue a writ of certiorari and call for the records in LGC No.28 of 2006 on the file of Special Court, Hyderabad, constituted under the AP Land Grabbing (Prohibition) Act, 1982, (for short, “the Act”) and to declare the order dated 1-4-2009 passed in LGC No.28 of 2006 as being illegal, arbitrary, contrary to evidence on record and consequently quash the same. 2. The 2nd respondent herein is the sole applicant in the LGC and the writ petitioner herein is the respondent in the LGC. 3. For the sake of convenience, the parties hereinafter will be referred to as they were arrayed in the LGC. 4. The applicant filed the LGC to declare him as owner of the application schedule property admeasuring 4104 sq. yards situated in Sy. No.22 of Gachibowli Village, Serilingampally Mandal, Ranga Reddy District, (now GHMC) (for short, “the land”) and to further direct the respondent to deliver vacant possession of the land after declaring him as land grabber within the meaning of the provisions of the Act. As per the averments made in the concise statement, applicant states that he is the owner of the land having purchased the same from one Manikonda Muttaiah through registered agreement of sale-cum-GPA dated 22-1- 2005 vide document no.759/2005 and subsequently the land was registered vide document no.9532/2005, dated 30-6-2005 and entire sale consideration was paid to the vendor of the land. That he made application to the concerned authorities for survey and to fix boundaries of the land. That pursuant to the directions given by this Court in WP No.18838 of 2005, dated 9-9-2005, the Assistant Director, Survey and Land Records, Ranga Reddy District, conducted survey on 24-10-2005, after informing as to the date of survey to all concerned, in the presence of panchas, police personnel and revenue personnel and the adjacent land owners and in their presence boundaries were fixed. As per the panchanama issued in file no.A4/1694/2005, A3/757/2005, by the surveyor it was found that plot nos.28 and 29 admeasuring 252 sq. yards are covered by Sy.No.22 were sold by Manikonda Muttaiah, the vendor of the applicant prior to the sale of the land in question. The applicant stated that as per the conditions of agreement entered into, at the time of purchase of the land, the applicant agreed to leave out the possession of plot nos.28 and 29, as they are already sold by the vendor of the applicant, and that he is not claiming any right over plot nos.28 & 29 and, therefore, the claim of the applicant in Sy. No.22 is restricted to 4104 sq. yards. It is stated that the name of the applicant was also mutated in the revenue records vide proceedings no.B/1126/2005, dated 14-11-2005, issued by the MRO, Serilingampally. It is further stated that as per the survey report and survey conducted, it was found that the respondent, who is owner of land in Sy.Nos.48 & 49, encroached a small part of the land of the applicant and erected two small structures within the premises of the land situated in Sy.No.22. That the applicant approached the respondent and thereafter, survey and panchanama of the land situated in Sy.Nos.48 and 49 of Gachibowli Village was conducted on 30-12-2005 in the presence of the applicant and the respondent and other parties concerned and panchanama proceedings were issued vide document no.A3/1875/2005 and the boundaries were fixed demarcating the land of the applicant and the respondent. That the applicant and the respondent signed the survey report and panchanama and the survey report categorically says that the respondent has encroached upon the land of the applicant by erecting two temporary small sheds in land situated in Sy. No.22. It is stated that after negotiations, the respondent agreed to remove the structures as mentioned in the survey report dated 30-12-2005, but demanded a sum of Rs.1,00,000/- for removing the structures and accordingly the applicant paid the said sum of Rs.1,00,000/- through cheque bearing no.706301, dated 2-1-2006 drawn on SBI, Jubilee Hills Branch. It is stated that the respondent has withdrawn the said amount, but failed to remove the structures from the land of the applicant situated in Sy.No.22. That the applicant filed WP No.1455 of 2006 seeking a direction to the Police authorities to take action against the respondent to protect his property, but the said writ petition was dismissed on 4-4- 2006 observing that the applicant can pursue the remedies available to him under law. That after dismissal of the writ petition, the respondent grabbed the entire land to an extent of 4104 sq. yards in Sy.No.22 of Gachibowli Village, which is the subject land in the instant case. 5. The matter was contested by the sole respondent by filing his counter affidavit. The respondent denied that the applicant had purchased Ac.0-36 guntas of agricultural land from Manikonda Muttaiah under agreement of sale-cum-GPA, dated 22-1-2005 and subsequently by registered sale deed dated 30-6-2005. The respondent also denied the survey conducted on 24-10-2005 in the presence of panchas, revenue personnel and others. The respondent also denied regarding the survey report and recitals in the said report to the effect that the respondent, who is owner of land in Sy.No.48 and 49, encroached a small part of the land of the applicant situated in Sy.No.22 and erected two small structures within premises of the land of the applicant. The respondent further denied regarding his approaching the survey authorities on 3-11-2005 seeking survey of his land situated in Sy.Nos.48 and 49 of Gachibowli Village and also conducting the said survey in the presence of revenue, police personnel and conducting panchanama and fixing of the boundaries for the property of the respondent. The respondent also denied demanding of Rs.1,00,000/- towards the construction cost of two temporary sheds erected in Sy.No.22 and payment of the said amount by way of cheque and receipt of the said amount by the respondent. It is also denied by the respondent that he after dismissal of WP No.1455 of 2006 filed by the applicant, has grabbed the entire land of the applicant. But on the contrary, it was stated that the applicant has grabbed four house sites of 50 sq. yards each in Mastan Nagar and constructed a building there and that he also illegally grabbed the tank bed land in Sy. Nos.79, 127 and 128 of Gachibowli Village. That the applicant also created false records to grab the land in Sy.Nos.129 and 130 belonging to AP Housing Board. That the applicant is an accused in CC No.493 of 2001 on the file of V Metropolitan Magistrate, Hyderabad, for the offences under Section 427 and 447, r/w. Section 34 IPC. That the applicant and his family members are also accused in CC No.1210 of 2001 of Banjara Hills Police Station under Sections 419, 420, 468 and 471 IPC for grabbing plots at road no.2 of Banjara Hills, Hyderabad. It was further stated that the entire extent of land of Ac.4-05 guntas bearing Sy.Nos.19, 20, 21 and 22 was converted into 44 plots by original pattadar i.e. Manikonda Muttaiah and others in the year 1990 itself and they sold all the said plots under various registered sale deeds. That the respondent also filed encumbrance certificates in respect of the property claimed by him and also filed photographs showing the constructions made in the said land situated in Sy. Nos.19 and 22. It was also stated that the pattedars of Sy.Nos.19 to 22 sold more than the actual extent of land and were not left with any land to sell to the applicant. That the applicant without any manner of right over the land has filed the LGC with false allegations. That the vendor of the applicant i.e. Manikonda Muttaiah had no title and possession to sell the land, as no land was left over for selling the same in Sy.Nos.19 and 22 including the land in question. It was further alleged that the Inspector of Survey Records in collusion with the applicant filed a false report and got the land surveyed without the help of tippons. It was further stated that the respondent purchased the land in Sy.Nos.48 and 49 admeasuring Ac.1-36 guntas initially under possessor’s agreement of sale dated 19-2-1987. That on receipt of the entire sale consideration, the original pattedar executed registered sale deed dated 23-7-1990 in favour of the respondent and three others in respect of 37 ½ guntas. That an irrevocable power of attorney was executed in favour of the respondent in respect of remaining extent of 38 ½ guntas. That the respondent sold 38 ½ guntas covered by irrevocable power of attorney to third parties, after converting the same into plots. The co- purchasers under the sale deed dated 23-7-1990 executed an irrevocable power of attorney in favour of the respondent. That the respondent re-gained the land covered by sale deed dated 23-7-1990 admeasuring Ac.0-37 guntas in Sy.Nos.48 and 49 at Gachibowli Village and has constructed a compound wall and also raised a farm house with garden consisting of teak, mango, orange and banana plants. That the respondent obtained electricity connection and dug a bore well and the property was assessed to property tax with door no.1-72/4/A. That the plot owners in Sy.Nos.19 to 22 have filed suits against the applicant in OS No.3453 of 2005 on the file the Principal Junior Civil Judge, Ranga Reddy District, and an injunction order was granted against the applicant. That the respondent has not grabbed the land, as alleged by the applicant. 6. Basing on the respective pleadings, the Special Court framed the following issues:- 1. Whether the applicant is the owner of the application schedule property ? 2. Whether the rival title set up by the respondent is true, valid and binding on the applicant ? 3. Whether the respondent is a land grabber within the meaning of Act XII of 1982 ? 4. To what relief ? 7. The applicant to prove his case examined himself as PW-1 and Exs.A-1 to A-15 have been marked. On behalf of the respondent, he examined himself as RW-1 and another person as RW-2 and Exs.B-1 to B-73 have been marked. The Special Court having considered the evidence adduced both oral and documentary by the parties, allowed the LGC case and held that the respondent (writ petitioner herein) has been in illegal and unauthorized occupation of the land and accordingly directed the respondent to vacate and hand over the vacant possession thereof to the applicant within two months from the date of the order. Aggrieved by the same, this writ petition has been filed by the respondent in the LGC. 8. Sri Ramakrishna Reddy, learned senior counsel appearing for the writ petitioner strenuously contended that the Special Court failed to appreciate the fact that the applicant fabricated agreement of sale dated 22-1-2005 and registered sale deed dated 30-6-2005 which purports that the applicant has purchased the land to an extent of 36 guntas in Sy.No.22 from Manikonda Muttaiah. It was further contended that Manikonda Muttaiah already alienated his entire property in Sy.Nos.19 and 22 by making house plots to various members under registered sale deeds Exs.B-2, B-14 to B-55 and, therefore, Manikonda Muttaiah has not retained any extent of land in Sy.nos.19 & 22. It is also further contended that there is no act of grabbing and mens rea to grab the land and the writ petitioner-respondent has been in possession of the land in his own right. It is further stated that Manikonda Muttaiah has no title in respect of the land situated in Sy.No.22 and when once the vendor had no title, the applicant has no title, much less prima facie title. Learned counsel further contended that no finding is recorded by the Special Court on the ingredients of Sections 2 (d) and (e) of the Act. Learned counsel for the petitioner further contended that though the plea of adverse possession was taken, no finding was given by the Special Court. Learned counsel has also drawn our attention to the order passed by this Court in WP No.1455 of 2006 wherein this Court while dismissing the writ petition observed that the complaint dated 22-12-2005 given by the applicant to the Police, the applicant did not furnish any particulars as to the date of alleged illegal encroachment of the land by the respondent, time or other particular and thereby relegated the parties to civil Court. Learned counsel also contended that there is no averment in the concise statement that the respondent has grabbed the land and therefore there is no cause of action to take cognizance of the LGC by the Special Court. 9. Sri N. Subba Reedy, learned senior counsel for the applicant-2nd respondent herein contended that the parameters of certiorari jurisdiction is very narrow and limited and therefore the findings reached and concluded by the Special Court on questions of facts does not warrants any interference. It is further contended that the respondent is the owner of the land of 37 ½ guntas by virtue of Exs.B-3 and B-4 of Gachibowli Village, Serilingampally Mandal, Ranga Reddy District, but under the guise of his right in Sy.No.48 and 49, the respondent grabbed the land of the applicant in Sy.No.22. It is further submitted that as per the panchanama and survey report dated 30-12-2005 wherein boundaries were fixed demarcating the land of the respondent and the applicant, the respondent (writ petitioner) signed the survey report and agreed to remove the structures from the land and received a sum of Rs.One lac for that purpose, but after dismissal of the writ petition being WP No. 1455 of 2006 filed by the applicant, the respondent grabbed the land of the applicant. It is submitted that the Special Court having considered Exs.A-1, A-2 and also Ex.A-7 panchanama dated 30-12-2005, Ex.A-12 statements of accounts of applicant issued by the State Bank of India, Jubilee Hills, Hyderabad, to the effect that the respondent has withdrawn the amount of Rs.One Lac, rightly directed the respondent to vacate the land and handover the same to the applicant and, therefore, the writ petition is liable to be dismissed. 10. Having heard the learned counsel for the parties and having perused the impugned order passed by the Special Court, the point that arise for our consideration is whether there is act of land grabbing, as alleged by the applicant and whether the impugned order passed by the Special Court holding the writ petitioner to be in illegal and unauthorized possession of the land and consequently directing him to vacate and handover the land to the applicant is sustainable in law. 11. It is apropos to refer to the definition of “land grabbing” and “land grabber” as defined in Section 2 (e) and Section 2 (d) of the Act, which reads thus: “Section 2(e) - "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 licence agreements or any other illegal agreements in respect of such lands, or to construct unauthorized 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(d) - "land grabber" means a person or a group of persons who commits land grabbing and includes any person who gives financial aid to any person for taking illegal possession of lands or for construction of unauthorized structures thereon, or who collects or attempts to collect from any occupiers of such lands rent, compensation and other charges by criminal intimidation, or who abets the doing of any of the above mentioned acts; and also includes the successors- in-interest.” 12. The claim of the applicant is that he is the absolute owner of the land and the allegation is that his land was grabbed by the writ petitioner, but in view of the provisions of the Act noted, the initial burden is on the applicant to prove his right and title to the land and if the same is discharged by the applicant, the burden shifts on the writ petitioner-respondent. 13. Learned counsel for the writ petitioner relied on para 106 of the decision of the Full Bench of this Court in MOHD SIDDIQ ALI KHAN vs. SHAHSUN FINANCE LTD (2005 (2) ALD 675), which reads thus: “106. 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 Shalivahana Builders' case (1 supra), 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 unauthorisedly 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." 14. The contention of the writ petitioner-respondent is that there is no act of grabbing and intention to grab the land, but it is seen from order dated 4-4-2006 passed in WP No.1455 of 2006 by this Court, the complaint of the applicant was that the respondent has encroached some part of the land in Sy.No.22 and in spite of repeated requests he refused to vacate the same and trying to grab the land. It is noticed that the applicant in his affidavit before the Special Court has specifically averred that the respondent after the dismissal of the writ petition being WP No.1455 of 2006, has grabbed the entire land and constructed two sheds without any right or title over the land. The panchanama and survey report dated 30-12-2005 and also the survey conducted pursuant to the representation made by the respondent it was noted that the respondent has been in possession of part of the land in Sy. No.22 and it is the admitted case of the respondent that he is not owner of the land in Sy.No.22 and under those circumstances, the Special Court observed that the respondent has been in illegal and unauthorized possession of the land. Ex.A-1 is the agreement of sale-cum-GPA executed by Manikonda Muttaiah in favour of the applicant, dated 22-1-2005. Ex.A-2 is the original sale deed dated 30-6-2005 executed by Manikonda Muttaiah in favour of the applicant. Ex.A-3 is the certified copy of the panchanama dated 24-10-2005 along with sketch. Ex.A-4 is the proceedings of the Dy. Collector and MRO, Serilingampally Mandal, Ranga Reddy District, dated 14-11-2005. Ex.A-5 is the copy of Tippon of Sy.No.22 of Gachibowli Village. Ex.A-6 is the copy of the order passed in WP No.27359 of 2005, dated 23-12-2005. Ex.A-7 is the panchanama, dated 30-12-2005. Ex.A-8 is the true copy of tonch map of Sy.No.48 and 49. Ex.A-9 is the true copy of inspection notes in respect of demarcation of lands in Sy.Nos.19 to 22, 48 & 49 of Gochibowli Village along with sketch. Ex.A-11 is the true copy of the letter from Assistant Director, S & LR, Ranga Reddy District to the Superintendent of Police, Regional Vigilance and Enforcement Department, Hyderabad Rural, dated 20-6- 2007 along with four sketches. Ex.A-12 is the statement of account of the from SBI, Jubilee Hills Branch. Ex.A-13 is the proceedings of the Special Grade Deputy Collector & RDO, Chevella Division, dated 10-5- 2007. The Special Court having checked the foundational facts and the same satisfy the ingredients of Section 2 (d) and (e) of the Act rightly entertained the case. 15. The Apex Court in OM PRAKASH VS. LINGAMAIAH (JT 2009 (6) SC 116) ruled that all attributes of a civil litigation can be gone into by the Special Court and the Tribunal, para 10 of the order reads thus: “10. The Act indisputably confers a wide jurisdiction upon the Special Tribunal and Special Court. All attributes of a civil litigation can be gone into by the Special Court and the Tribunal. The Tribunal is not only a court but by reason of a legal fiction created is deemed to be a civil court. It contains a non-obstante clause, by reason whereof the provisions of the Act would prevail over the Code of Civil Procedure, 1908 as also the Andhra Pradesh Civil Courts Act, 1972.” 16. Before the Special Court the applicant very much relied on the survey report issued in file no.A4/1694/2005, A3/757/2005, by the surveyor wherein it was found that plot nos.28 and 29 admeasuring 252 sq. yards are covered by Sy.No.22 were sold by Manikonda Muttaiah, the vendor of the applicant prior to the sale of the land in question. 17. As regards the plea of adverse possession, the applicant is admitting that as per the conditions of agreement entered into with Manikonda Muttaiah, at the time of purchase of the land, he agreed to leave out the possession of plots nos.28 and 29, as they are already sold by Manikonda Muttaiah and that he is not claiming any right over plot nos.28 & 29 and, therefore, the applicant restricted his claim to 4104 sq. yards situated in Sy.No.22. The respondent having admitted that he is in possession of the small portion of the land in Sy.No.22, under the presumption that it is part of the land in Sy.Nos.48 and 49, cannot claim adverse possession in respect of the land in Sy.No.22 and he cannot assert his rights both as owner of the land and also by way of adverse possession. 18. The next contention raised by the learned counsel for the petitioner that the vendor of the applicant has no title and therefore he cannot pass on a valid title to the applicant. The applicant filed Ex.A-1 registered GPA-cum-agreement of sale and Ex.A-2 registered sale deed in respect of the land. The statutory report of the Deputy Collector and Mandal Revenue Officer, Serilingampally Mandal, dated 8-8-2006 it was mentioned thus: “……as per the pahani for the year 2002-2003 of Gachibowli village, the land in Sy. No.22 admeasuring Ac.0-36 guntas is classified as patta land, which stands in the name of Manikonda Muttaiah, S/o.Durgaiah and a copy of the said extract of the pahani for the year 2002-2003 of Gachibowli village is also enclosed to Mandal Revenue Offider’s report.” 19. The transactions under Exs.A-1 and A-2 in respect of the land was in the year 2005 and prior to the applicant, no person’s name was recorded as owner of the land. Pursuant to Exs.A-1 and A-2, the applicant’s name was mutated in the revenue records vide proceedings no.B/1126/2005, dated 14-11-2005, issued by the MRO, Serilingampally, marked as Ex.A-4. 20. The question regarding to the jurisdiction of the Courts constituted under the Act has been considered at length by the Apex Court in MAHALAXMI MOTORS LTD. VS. MANDAL REVENUE OFFICER, (2007) 11 SCC 714, wherein inter alia it was held thus: “40. The Tribunal being possessed of extensive jurisdiction, subject of course to