*THE HON’BLE SRI JUSTICE V.ESWARAIAH AND THE HON’BLE SRI JUSTICE B.N.RAO NALLA +WRIT PETITION NO. 23212 OF 2010 AND WRIT PETITION NO. 23241 OF 2010 % 30-11-2010 # Shaik Maqsood Ali and five others ..... Petitioners in WP No. 23212 of 2010 Mr. Aditya Dev and another ..... Petitioners in WP No. 23241 of 2010 Vs. $ The Special Court under A.P. Land Grabbing (Prohibition) Act, having its office at BRK Bhavan, Tank bund, Hyderabad and others .....Respondent in both the writ petitions. ! Counsel for the Petitioners : A.Pulla Reddy Counsel for the Respondent: Govt. Pleader for Revenue < Gist: > Head Note: ? Cases referred: 1. 2005(2) ALT 503 (FB) 2. 2010 (5) ALD 23 (DB) 3. 2003(2) ALD 84 (SC) 4. 2007 (5) ALD 184 (DB) 5. (2008) 14 SCC 171 IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD TUESDAY, THE THIRTIETH DAY OF NOVEMBER TWO THOUSAND AND TEN PRESENT THE HON’BLE SRI JUSTICE V.ESWARAIAH AND THE HON’BLE SRI JUSTICE B.N.RAO NALLA WRIT PETITION NOS. 23212 & 23241 OF 2010 Between: Shaik Maqsood Ali and five others ..... Petitioners in WP No. 23212 of 2010 Mr. Aditya Dev and another ..... Petitioners in WP No. 23241 of 2010 AND The Special Court under A.P. Land Grabbing (Prohibition) Act, having its office at BRK Bhavan, Tank bund, Hyderabad and others .....Respondent in both the writ petitions. The Court made the following : COMMON ORDER: (per THE HON’BLE SRI JUSTICE V.ESWARAIAH) These two writ petitions arise out of the common order dated 30.8.2010 made in I.A. No. 884 of 2010 in L.G.C. No. 11 of 1992 and I.A. No. 885 of 2010 in L.G.C.No. 20 of 1992 on the file of the Special Court under A.P. Land Grabbing (Prohibition) Act (hereinafter referred to as the Special Court). The petitioners in W.P. No. 23241 of 2010 are the petitioners in I.A. No. 884 of 2010 in L.G.C. No. 11 of 1992 and they are the respondent Nos.1 and 2 in the said L.G.C; whereas, the petitioners in W.P. No. 23212 of 2010 are the petitioners in I.A. No. 885 of 2010 in L.G.C. No. 20 of 1992 and they are respondents Nos. 6 to 11 in the said L.G.C. No. 20 of 1992. Both the said I.A. Nos. 884 and 885 of 2010 are filed in the pending L.G.C. Nos. 11 and 20 of 1992 filed under Sec. 8-2(A) of the A.P. Land Grabbing (Prohibition) Act (hereinafter referred to as the Act) with a prayer to reject the L.G.Cs. as not maintainable, as the very taking of cognizance of the cases was without calling for the verification report from the Mandal Revenue Officer and, therefore, the cognizance taken by the Special Court is illegal, bad and contrary to the provisions of the Act and the judgments of this court. The said two applications are dismissed by the impugned order against which these two writ petitions are filed. The facts and contentions in both the cases are similar and as such both the writ petitions are disposed of by this common order. It is case of the petitioners herein that the land grabbing cases filed by the applicants are not maintainable in law on the facts of the cases and the Special Court has taken cognizance of the cases without calling for the verification report from the Mandal Revenue Officer under Rule 6(2) of the Andhra Pradesh Land Grabbing (Prohibition) Rules, 1988 (hereinafter referred to as the Rules) made under the Act and, therefore, the said action of the Special Court is contrary to law as well as Full Bench judgment of this court in Mohd. Siddiq Ali Khan Vs. M/s. Shahsun Finance Limited, Chennai ([1]) and various other judgments of this court as well as the Apex Court. It is stated that the factum of calling for the verification report of the Mandal Revenue Officer before taking cognizance of the cases has recently come to the knowledge of the petitioners when they filed copy application No. 838 of 2010 dated 24.6.2010 and the same was returned by the Copying Section with the endorsement Mandal Revenue Officer report is not filed, hence, CA is returned and, as such, they have filed the said petitions questioning the maintainability of the L.G.Cs. Though various other grounds also have been urged, but we are of the opinion that they need not be dealt with to answer the issue involved in the present cases, as the said contentions relate to merits of the cases. Counters have been filed opposing the said applications stating that the said Full Bench Judgment has no application to the facts of the case, as the Special Court has already taken cognizance of the cases and thereafter the trial has commenced and the evidence was recorded and, in fact, the said L.G.Cs. were dismissed earlier against which the applicants in the said L.G.Cs. have filed W.P. Nos. 23187 of 1996 and 22181 of 1996 on the file of this Court and a Division Bench of this Court by order dated 26.6.2009 set aside the judgment of the Special Court in both the cases and remitted back to the Special Court with a direction to afford opportunity to each of the parties to lead further evidence and thereafter hear and decide the matter afresh and the said judgment has become final. Pursuant to the said judgment, remitting the matters, further evidence was also let in and, therefore, the Special Court cannot go beyond the scope of the remand order passed by this court. It is further stated that the petitioners have not raised the issue of maintainability of the L.G.Cs. at any point earlier and, as such, they are estopped from raising the plea of maintainability of L.G.Cs. for want of the report of Mandal Revenue Officer, after the matters are remanded by this Court. It is further stated that the Special Court has got power to call for the report from the Mandal Revenue Officer under Rule 6(2) of the Rules. It is stated that this court has also considered the rival claims of the parties on merits and remitted the matters to the Special Court for disposal afresh and, therefore, the cases being eighteen years old, the petitions does not deserve any consideration and are liable to be dismissed. The Special Court by the impugned order dated 30.8.2010, has considered the claim as to whether the Mandal Revenue Officer’s report is a must before taking cognisance of the case and after taking cognizance without report of the Mandal Revenue Officer, whether the proceedings vitiate. It is contended by the learned counsel for the respondents that the order of the Special Court taking cognizance cannot be recalled at this stage, when so much of water has flown under the bridge. Assailing the judgment rendered by the Special Court in the year 1996 for adducing evidence by both the parties, the matter was carried to the High Court and the High Court by a common order dated 26.6.2009, remanded both the writ petitions to the Special Court and, therefore, if the order taking cognizance is recalled, it would make the entire previous exercise futile and wasteful and it would set at knot all the proceedings including the remand order. The judgment of the High Court as well as the Special Court had become final and the remand order is binding on both the parties. On the aforesaid contentions, the Special court has observed that the cognizance was taken in the year 1992 and the judgments were pronounced on 12.7.1996, against which the writ petitions filed by the applicants before the L.G.Cs. were allowed by the High Court on 26.6.2009 remitting the matters back to the Special Court and thus eighteen years have elapsed after filing the L.G.Cs. The silence on the part of the petitioners in not brining to the notice of the High Court, reflects the conduct of the petitioners, as a result of which the Special Court has distinguished the judgment of the Full Bench as well as the judgment in the case of Sri Rai Bahadur Dwarakanath Kakar Public Trust and Another Vs. Special Court under A.P. Land Grabbing (Prohibition) Act, 1982, Hydeabad and others ([2]). It is stated that only after the Full Bench judgment (1st supra), the Special Court began to call for the report from the Mandal Revenue Officer before taking cognizance of the cases and, as such, the compliance of Rule 6(2) of the Rules is held to be mandatory one. Rule 6(2) is procedural in nature and the procedural laws shall not generally be applied retrospectively and, therefore, the Full Bench Judgment has no retrospective effect. However, the earlier orders that were passed will merge in the order passed by the High Court. If the cognizance already taken is recalled, it would have far reaching affect and totally nullify all the proceedings that took place subsequent to the taking of cognizance of the cases and the entire labour put in by the Special Court in recording the evidence, hearing arguments and pronouncing the judgments by the Special Court would go waste and the applicant would be thrown back to the stage of institution. Accordingly, the Special Court was of the opinion that the cognizance already taken without calling for the report of the Mandal Revenue Officer, cannot be recalled as it would render all the proceedings a nullity more particularly when it would also amount to setting aside the remand order passed by this court. The Special Court has advised the petitioners to initiate appropriate proceedings before the High Court in view of the ratio in Sri Rai Bahadur Dwarakanath’s case (2nd supra). Observing so, the Special Court dismissed the petitions. We have heard the counsel on either side at length. To resolve the controversy, it is apposite to reproduce Section 7, 7-A and 8 and Rule 6 of the Rules: 7. Constitution of Special Courts:— (1) T h e G o v e r n m e n t m p r o v i d i n g s p e e d y enquiry into any alleged act of land grabbing, and trial of cases in respect of the ownership and title to, or lawful possession of, the land grabbed, by notification, constitute a Special Court. (2) A Special Court shall consist of a Chairman and four other members, to be appointed by the Government. (3) The Chairman shall be a person who is or has been Judge of a High Court and of the other four members, two shall be persons w h o a D i s t r i c t J u d g e s ( h J u d i c i a l Members and the other two members shall be persons who hold or have held a post not below the rank of a District Collector (hereinafter referred to as Revenue Members): Provided that the appointment of a person w h o was a Judge of a High C o u r t a C h a i r m a n o f t h e S p e c i a l m a d e a f t e r consultation with the Chief Justice of the High Court concerned; Provided further that where a sitting Judge of a High Court is to be a p p o i n t e d a s u c h a p p o i n t m e n t nomination by the Chief Justice of the High Court concerned, with the concurrence of the Chief Justice of India. (4) The Government from time to time likewise reconstitute the Special Court constituted under sub-section (1) or may, at any time abolish such Special Court. 4-A) The Chairman or other member shall hold office as such for a term of two years from the date on which he enters upon his office, or until the Special Court is reconstituted or abolished under sub-section (4), whichever is earlier. (4-B) (a) Subject to the other provisions of this Act, the jurisdiction, powers and authority of the Special Court may be exercised by benches thereof one comprising of the Chairman, a Judicial member and a Revenue member and the other comprising of a Judicial Member and a Revenue Member. ( b ) Where the bench comprises of the Chairman, he shall be the Presiding Officer of such a bench and where the bench consists of two members, the Judicial member shall be the Presiding Officer. ( c ) It shall be competent for the Chairman either suo motu or on a reference made to him to withdraw any case pending before the bench comprising of two members and dispose of the same or to transfer any case from one bench to another bench in the interest of justice. ( d ) Where it is reasonably apprehended that the trial of Civil liability of a person accused of an offence under this Act, is likely to take considerable time, it shall be competent for the Chairman to entrust the trial of the criminal liability of such offender to another bench in the interest of speedy disposal of the case. ( e ) Where a case under this Act is heard by a Bench consisting of two members and the members thereof are divided in opinion, the case with their opinions shall be laid before another judicial member or the Chairman and that member or Chairman, as the case may be after such hearing as he thinks fit, shall deliver his opinion and the decision or order shall follow that opinion. (5) ……………. (5A) …………….. (5B) …………... (5C) ………….. (5D) (i) to (iii)……….. (6) …………... Section 7-A which deals with the Special Tribunals and its powers, sreads as undser: 7-A. Special Tribunals and its powers, etc.:— (1) Every Special Tribunal shall have power to try all cases not taken cognizance of by the Special Court relating to any alleged act of land grabbing, or with respect to the ownership and title to, or lawful possession of the land grabbed whether before or after the commencement of the Andhra Pradesh Land Grabbing (Prohibition) (Amendment) Act, 1987 and brought before it and pass such orders (including orders by way of interim directions) as it deems fit. Provided that if, in the opinion of the Special Tribunal, any case brought before it is prima facie frivolous, or vexatious it shall reject the same without any further enquiry: Provided further that if in the opinion of the Special Tribunal any case brought before it is a fit case to be tried by the Special Court it may for reasons to be recorded by it transfer the case to the Special Court for its decision in the matter. ( 2 ) Save as otherwise provided in this Act, a Special Tribunal shall, in the trial of cases before it, follow the procedure prescribed in the Code of Civil Procedure, 1908 ( 3 ) A n a p p e a l s h a l l o r o r d e r n o t b e i n interlocutory order of the Special Tribunal, to the Special Court on any question of law or of fact. Every appeal under this sub section shall be preferred within a period of sixty days from the date of Judgment or order of the Special Tribunal Provided that the Special Court may entertain an appeal after the expiry of the said period of sixty days, if it is satisfied that the appellant had sufficient cause for not preferring the appeal within the period of sixty days. (4) Every finding of the Special Tribunal 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 Tribunal with regard to the determination of the title and ownership to, or lawful possession o f , a n y g r a b b e d s h a l l b e h a v i n g interest in such land: Provided that the Special Tribunal 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 Tribunal 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 Tribunal taking cognizance of the case, the Special Tribunal shall not proceed further with the case in regard to such property Provided also that the Special Tribunal shall cause a notice of taking cognizance of the case under the Act served on any person known or believed to be interested in the land, after a summary enquiry to satisfy itself about the persons likely to be interested in the land. (5) It shall be lawful for the Special Tribunal to pass an order in any case decided by it, awarding compensation in terms of money for wrongful possession, which shall not be less than an amount equivalent to the market value of the land grabbed as on the date of the order and profits accrued from the land payable by the land grabber to the owner of the grabbed land and may direct the redelivery of the grabbed land to its rightful owner. The amount of compensation and profits so awarded and cost of redelivery, if any, shall be recovered as an arrear of land revenue if the Government are the owner and as a decree of a Civil Court, in any other case: Provided that the Special Tribunal shall, before passing an order under this sub-section, give to the land grabber an opportunity of making his r e p r e s e n t a t i o n o r i f a n y , i n t h i s r e g consider every such representation and evidence. (6) Any case, pending before any Court or other authority immediately before the commencement of the Andhra Pradesh Land Grabbing (Prohibition) (Amendment) Act, 1987 as would have been within the jurisdiction of a Special Tribunal, shall stand transferred to the Special Tribunal, having jurisdiction, as if the cause of action on which such suit or proceeding is based had arisen after such commencement (7) Every case brought before the Special Tribunal shall be disposed of finally by the Special Tribunal, as far as possible, within a period of six months from the date of its having been brought before it. (8) The Special Tribunal shall have all the powers of a Civil Court for purposes of review. Section 8 of the Act, which prescribes the procedure and powers of the Special Court, reads as under: 8. Procedure and powers of the Special Courts:— (1) The Special Court may, either suo motu or on application made by any person, officer or authority take cognizance of and try every case arising out of any alleged act of land grabbing or with respect to the ownership and title to, or lawful possession of, the land grabbed, whether before or after the commencement of this Act, and pass such orders (including orders by way of interim directions) as it deems fit; (1-A) The Special Court shall, for the purpose of taking cognizance of the case, consider the location, or extent or value of the land alleged to have been grabbed or of the substantial nature of the evil involved or in the interest of justice required or any other relevant matter: Provided that the Special Court shall not take cognizance of any such case without hearing the petitioner. ( 2 ) Notwithstanding anything in the Code of Civil Procedure, 1908 the Code of Criminal Procedure, 1973] or in the Andhra Pradesh Civil Courts Act, 1972, (Act 9 of 1972) any case in respect of an alleged act of land grabbing or the determination of question of title and ownership to, or lawful possession of any land grabbed under this Act, 3 [shall, subject to the provisions of this Act, be triable in the Special Court] and the decision of Special Court shall be final. (2-A) If the Special Court is of the opinion that any case brought before it, is not a fit case to be taken cognizance of, it may return the same for presentation before the Special Tribunal: Provided that if, in the opinion of the Special Court, any application filed before it is prima facie frivolous or vexatious, it shall reject the same without any further enquiry: Provided further that if on an application from an interested person to withdraw and try a case pending before any Special Tribunal the Special Court is of the opinion that it is a fit case to be withdrawn and tried by it, it may for reasons to be recorded in writing withdraw any such case from such Special Tribunal and shall deal with it as if the case was originally instituted before the Special Court. (2-B) 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. (2-C) The Special Court shall determine the order in which the civil and criminal liability against a land grabber be initiated. It shall be within the discretion of the Special Court whether or not to deliver its decision or order until both civil and criminal proceedings are completed. The evidence admitted during the criminal proceeding may be made use of while trying the civil liability. But additional evidence, if any, adduced in the civil proceedings shall not be considered by the Special Court while determining the criminal liability. Any person accused of land grabbing or the abetment thereof before the Special Court shall be a competent witness for the defence and may give evidence or oath in disproof of the charge made against him or any person charged together with him in the criminal proceeding: Provided that he shall not be called as a witness except on his own request in writing or his failure to give evidence shall be made the subject of any comment by any of the parties or the special court or give rise to any presumption against himself or any person charged together with him at the same proceeding. ( 3 ) … … … … . ( 4 ) Every case under sub-section (1) shall be disposed of finally by the Special Court, as far as possible, within a period of six months from the date of institution of the case before it. ( 5 ) … … … … … … … … . ( 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; P r o v i d e d f u r t h e r t e v a c u e e p r o p e r t y 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; Provided also that the Special Court shall cause a