IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) TUESDAY, THE TWENTY FIRST DAY OF DECEMBER TWO THOUSAND AND FOUR PRESENT THE HON'BLE MR JUSTICE BILAL NAZKI and THE HON'BLE MR JUSTICE S.ANANDA REDDY WRIT PETITION NO : 35082 of 1998 Between: R.Vasudev pillai S/o Late Raja venu Gopal Pillai H.No.493 Avenue No.6, Banjara Hills, Hyderabad-34. ..... PETITIONER AND 1 Mr .Rajendra Prashad Goel, S/o Ramchandra Pershad Goel, Plot No.3, Penderghast Road :3, Secunderabad – 3. 2 Commissioner of M.C.H., Tank Bund, Hyderabad – 4. 3 Chief City Planner, M.C.H., Tank Bund, Hyderabad – 4. 4 Addl.Commissioner, M.C.H., Circle No.1, Sardar Mahal, Hyderabad- 2. 5 Commissioner of Police, Purana Haveli, Hyderabad. 6 Registrar, Hon'ble Spl.Court under Land Grabbing (Prohibition) Act, 1982 , BRKR Bhavan, Tankbund, Hyderabad. 7 Revenue Divisional Officer, Nampally Station Road, Abids, Hyderabad. ...RESPONDENTS 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 Rule Nisi calling for the entire records leading upto an inclusive of the passing of the impugned order in L.G.C.Sr.No.3455 of 1998, dated 19-11-1998 by the Honourable Special Court constituted under the A.P. Land Grabbing (Prohibition) Act of 1982 and quash the same by issuing an appropriate writ, order or direction, more particularly one in the nature of Certiorari and further direct the 7th respondent to take cognizance of the case. Counsel for the Petitioner: Mr. P.Srinivasa Reddy Counsel for the Respondents : Mr. Vilas V.Afzulpurkar The Court made the following : THE HON’BLE SRI JUSTICE BILAL NAZKI AND THE HON’BLE SRI JUSTICE S.ANANDA REDDY WRIT PETITION No.35082 OF 1998 ORDER : (Per Hon’ble Sri Justice S.Ananda Reddy) This writ petition is filed by the petitioner aggrieved by the order of the Special Court under the Andhra Pradesh Land Grabbing (Prohibition) Act, 1982 (for brevity ‘the Act’) passed in L.G.C.(SR).No.3455 of 1998, dated 19-11-1998, seeking to quash the same by issuing a writ, order or direction, particularly one in the nature of Writ of Certiorari and further direct the seventh respondent to take cognizance of the case filed by the petitioner before the seventh respondent. 2. According to the petitioner he is the owner of the property bearing No.16-8-927, Nalgonda Cross Roads, Malakpet, Hyderabad. He entered into the Development- cum-Sale Agreement-cum-Irrevocable Power of Attorney with the first respondent on 25-1-1996, which was registered for the construction of a multi-storied complex for commercial-cum-residential purposes in the name of ‘PILLAI PLAZA’. According to the petitioner, as per the terms of the contract, the first respondent has to pay a sum of Rs.45-00 Lakhs, which was paid at the time of the contract, and in addition he has to complete the construction of the complex within a period of twenty four (24) months and deliver 5,000 sq.ft. of built up area. But the first respondent failed to start and complete construction of the complex though he paid the sum of Rs.45-00 Lakhs. Therefore, the petitioner cancelled the contract by executing a cancellation deed dated 9-4-1998 as the first respondent failed to pay the damages of Rs.50,000/- per month as stipulated in the contract. Though, the first respondent is not entitled to be in possession of the property in view of the cancellation of the contract, but the first respondent did not deliver back the possession of the property as demanded by the petitioner. Therefore, according to the petitioner, the first respondent is illegally continuing in possession of the property though he was not entitled to be in possession of the property in question, and as such, he should be treated as a land grabber in terms of the provisions of the Act. Therefore, the petitioner filed a case before the Special Court constituted under the provisions of the Act seeking declaration that the first respondent is a land grabber and further not only to take action against him, but also for restoration of the possession of the property to the petitioner. But the Special Court declined to take cognizance of the case of the petitioner, as according to the Special Court, the possession of the first respondent is not illegal as he was inducted into the possession under the terms of the contract entered into between the parties. Therefore, the case filed by the petitioner before the Special Court was rejected in limini. Aggrieved by that the petitioner has come up with the present writ petition not only to quash the impugned order of the Special Court, but also seeking a consequential direction to the Special Court to take cognizance of the complaint made by the petitioner and to declare that the first respondent is a land grabber. 3. The first respondent contested the said claim of the petitioner by reiterating the stand that was taken before the Special Court that he entered into possession of the schedule property under the terms of the contract pursuant to which the petitioner himself had delivered possession of the property to the first respondent after receiving a sum of Rs.45-00 Lakhs. In fact, the stand of the first respondent that the said sum of Rs.45-00 Lakhs was part of the sale consideration, which fact was even admitted by the petitioner and the other part of the sale consideration is delivery of part of the constructed portion of the building i.e., to the extent of 5,000 sq.ft. as specified in the terms of the contract. It was also the case of the first respondent that though a time schedule has been fixed for obtaining permissions, such as sanctioning of the plans as well as proceeding with the construction and completion of the complex, but unfortunately, permission in respect of the property with reference to which the contract was entered into between the parties, was not granted to put up a structure as was contemplated between the parties in view of the fact that the premises was reserved for semi-public and public utility under the City Master Plan. Therefore, the first respondent was constrained to approach the Government seeking change of the land user, which fact is known even to the petitioner, as even the petitioner participated in pursuing the governmental authorities, though the entire expenditure was borne by the first respondent in getting permission for the change of the land user. The said permission for change of the land user was obtained from the Government by a final notification dated 1-4- 1998 and thereafter only the first respondent could submit an application for sanction of the plans for the construction of the multi-storied complex as stipulated under the terms of the contract. In fact, in anticipation of the Government order, the first respondent submitted the application in April, 1997 itself. But as the land user was not changed by the Government orders, the said plans were rejected in view of the prohibition contained under the Master Plan for proceeding with the construction of the building as proposed. It is stated that after the orders of the Government, the first respondent submitted the plans again, but even before the orders of the Government were issued, the petitioner started demanding from the first respondent illegally certain amounts as stipulated under the contract, as if the first respondent had committed default in not proceeding with the construction of the building, which was disputed by the first respondent. Thereafter, the petitioner cancelled the very contract by executing a unilateral deed of cancellation on 9-4-1998 even though the petitioner does not have such power under the terms of the contract and the said action of the petitioner prevented the first respondent from obtaining the necessary sanctioned plan from the Municipal Corporation of Hyderabad. At that stage, the petitioner has approached the Special Court alleging that the first respondent is a land grabber, which was contested by the first respondent and the Special Court has rightly rejected the claim of the petitioner. Therefore, according to the first respondent, there is no merit warranting interference, as he was inducted into possession by the petitioner under the terms of the contract. 4. From the above rival contentions, the issue to be considered is whether the Special Court was right in refusing to take cognizance of the complaint petition made by the petitioner under the provisions of the Act. 5. At the time of hearing, learned counsel for the petitioner Sri J.M.Mukhi relied upon the provisions of Section 2 (d) and (e) of the Act and sought to contend that the first respondent is a land grabber, as he was not entitled to continue in possession. He also relied upon various judgments of the Apex Court as well as this Court to contend that when once the first respondent is not entitled to continue in possession as alleged by the petitioner, the Special Court is bound to take cognizance of the complaint and adjudicate upon the issues and there was no option for the Special Court to refuse to take cognizance of the complaint when allegations were made in the application that the respondent is illegally continuing in possession though he was not entitled under the law. Therefore, the impugned order of the Special Court is liable to be quashed. 6. The learned counsel appearing for the first respondent, on the other hand, supported the order and contended that as the 1st respondent was inducted into possession under the terms of the contract by the owner of the property itself, merely it was alleged that there were certain defaults committed by the other party, his possession would not ceases to be legal. If the other party has committed any illegalities or defaults as to the terms of the contract, the aggrieved party can take appropriate steps before the appropriate Civil Court and it is not a case where the jurisdiction of the Special Court could be invoked. It was also the case of the first respondent, that when once the first respondent was legally inducted into possession, his possession would not ceases to be legal and even if the aggrieved party is entitled to get back his possession from the other party, the party in possession would be continued under the terms of the contract till he is dispossessed. The learned counsel relied upon the latest decision of the Supreme Court in the case of Gouni Satya Reddy v. Government of Andhra Pradesh and others. 7. Before proceeding further, it would be relevant to note that the first respondent filed a suit being O.S.No.130 of 2001 on the file of the XIV Additional Chief Judge, City Civil Court (Fast Track), Hyderabad, not only seeking specific performance of the agreement entered into between the petitioner and the first respondent, but also seeking declaration of the cancellation deed as non-est. The said suit was contested by the writ petitioner. But, finally after adjudication, the Civil Court not only granted specific performance of the agreement of sale, but also declared that the cancellation deed is non-est. No doubt, the first respondent herein was directed to pay the damages as contemplated under the terms of the contract and the said part of the decree was assailed in appeal being C.C.C.A.No.79 of 2004 before this Court, which was also heard along with this writ petition. 8. According to the learned counsel for the writ petitioner, the moment an allegation is made that the first respondent is in possession of the property of the petitioner without any authority of law, the provisions of the Act would attract and the Special Court has to entertain the application and adjudicate upon the dispute between the parties. In support of his contention, he relied upon the following decisions. 9. In the case of Konda Lakshmana Bapuji v. Government of A.P. the Apex Court while interpreting the provisions of the Act held as under: “The term “grab” has a broad meaning – to take unauthorisedly, greedily or unfairly – and a narrow meaning of snatching forcibly or violently or by unscrupulous means. The term “grab” is used in the Act in both its narrow as well as broad meanings. A combined reading of clauses (d) and (e) would suggest that to bring a person within the meaning of the expression “land grabber” it must be shown that: (i)(a) he has taken unauthorisedly, unfairly, greedily, snatched forcibly, violently or unscrupulously any land belonging to the Government or a local authority, a religious or charitable institution or endowment, including a wakf, or any other private person; (b) without any lawful entitlement; and (c) with a view to illegally taking possession of such lands, or enter 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; or (ii) he has given financial aid to any person for taking illegal possession of lands or for construction of unauthorized structures thereon; or (iii) he is collecting or attempting to collect from any occupiers of such lands rent, compensation and other charges by criminal intimidation; or (iv) he is abetting the doing of any of the abovementioned acts; or (v) that he is the successor-in-interest of any such person(s). It is only when a person has lawful entitlement to the land alleged to be grabbed that he cannot be brought within the mischief of the said expression. A mere primafacie bonafide claim to the land alleged to be grabbed by such a person, cannot avert being roped in within the ambit of the expression “land grabber”. What is germane is lawful entitlement to and not a mere prima facie bonafide claim to the land alleged to be grabbed. In both Sections 7(1) and 8(1) of the Act the phrase “any alleged act of land grabbing” is employed and not “act of land grabbing”. It is designedly done by the legislature to obviate the difficulty of duplication of trial once in the courts under the Act and over again in the ordinary civil Court. Thus for purposes of taking cognizance of a case under the Act, existence of an allegation of any act of land grabbing is the sine qua non and not the truth or otherwise of such an allegation. But to hold that a person is a land grabber it is necessary to find that the allegations satisfying the requirements of land grabbing are proved. To make out a case in a civil case that the appellant is a land grabber the first respondent must aver and prove both the ingredients — the factum as well as the intention — that the appellant falls in the categories of the persons, mentioned above [clause (d) of Section 2 of the Act], has occupied the land in dispute, which belonged to the first respondent, without any lawful entitlement and with a view to or with the intention of illegally taking possession of such land or entering into the land for any of the purposes mentioned in clause (e) of Section 2 of the Act. What needs to be looked into in the present controversy is: whether the appellant has any lawful entitlement (proprietary or possessory) to the land in dispute and had come into possession of the land in dispute unauthorisedly. On a careful perusal of the judgment of the Special Court on the question of title of the first respondent and that of the appellant and his lessor Inamdar we are satisfied that neither was any relevant material excluded from consideration nor was any irrelevant material relied upon by the Special Court in recording its finding. There was, therefore, no scope for the High Court to interfere with those findings. No interference is also warranted by the Supreme Court in this appeal filed under Article 136. 10. In fact, the view expressed by the Apex Court in the above case was even reiterated by the Apex Court in the case of State of A.P. v. P.V.Hanumantha Rao. In this case, the appellant State of Andhra Pradesh claimed that it is the owner of the land in Survey No.9 of Saroornagar Village, Ranga Reddy District of Andhra Pradesh, admeasuring Ac.540-32 gts. Out of the said area, Ac.295-18 gts. was set apart in favour of Ex-Ruler of erstwhile Nizam State as Sarfekhas lands (personal property of Nizam). The respondents’ claim was that the erstwhile Ruler of Nizam had granted as ‘muntakhab’ or ‘inam’ Acs.60-00 of land in the above survey number to his horseman Syed Khasim Silhedar. After the death of Syed Khasim, his son Gulam Ahmed sold Acs.45-00 of land to respondent P.V.Hanumantha Rao. The rest of the extent is claimed to be in possession of the legal heirs of the said Gulam Ahmed. A petition for grant of occupancy rights under the Inams Abolition Act was allowed by the Revenue Divisional Officer, though the said order was reversed in appeal by the Collector. In the writ petitions filed against the said order, the High Court did not go into the merits of the contentions because by that time the State filed a suit for declaration before the Special Court and the matter was transferred for trial before the Special Court. Though the Special Court declared that the land is that of the State Government, but the writ petition filed against the said order of the Special Court, was allowed on the ground that the Special Court failed to consider certain relevant evidence, against which the State filed an appeal before the Apex Court. The Apex Court while affirming the order of the High Court referred to and relied upon the observations of the Apex Court in the case of Konda Lakshmana Bapuji (supra 2) and further held the provisions of the Act of 1982, which are to be understood in the light of the Statement of Objects and Reasons of the Act and the decision of this Court in the case of Konda Lakshmana Bapuji (supra 2) indicate that mere doubt raised by the State on the title and possession of the occupant of the land does not make him a land grabber. Whenever the right of occupation is questioned by the State, it is not enough for the occupant to show that he has a primafacie bonafide claim to the land occupied, but a burden is cast on him to prove that he is in occupation or possession of the land under a lawful title. 11. The learned counsel, in support of his contention that if an allegation is made that the respondent is a land grabber, the jurisdiction vests in the Special Court and not in any other Civil Court, as the jurisdiction of the Civil Court is ousted, relied upon the observations of this Court in the case of Sada Linga Reddy and others v. Mustabad Narsamma, which read as under. “A.P. Land Grabbing (Prohibition) Act, 1982 is a special enactment and it was enacted with a view to make stringent provisions to arrest and curb unlawful activities of land grabbers who are indulging in grabbing, either by force or by deceit, the land belonging to the Government, local authority, Religious Charitable Institution or Endowment or any other private person. That being the object of the Act, under Section 7-A and Section 8 of the A.P. Land Grabbing (Prohibition) Act wide powers are conferred on the Tribunals and the special Court constituted under the said Act to try all cases relating to any alleged act of land grabbing or with respect to the ownership and title to or lawful possession of the land grabbed. It is well settled that the scope of a provision containing a non obstante clause has to be interpreted taking into consideration the underlying object of the statute itself. If Section 15 of the A.P, Land Grabbing (Prohibition) Act which contains non obstante clause is given its true meaning bearing in mind the object with which A.P. Land Grabbing (Prohibition) Act enacted, it is clear that the Legislature is intended at conferring powers on the Special Court to go into the title and ownership of the land alleged to be grabbed irrespective of any order passed under the provisions of A.P. (T.A.) Abolition of Inams Act, 1955. Therefore, we are unable to accept the contention of the learned counsel for the petitioners regarding the jurisdiction of the special Court. 12. According to the learned counsel for the petitioner, the respondent asserted title in himself denying the title of the petitioner, and therefore, the provisions of the Act are attracted and in support of his contention, he relied upon the observations of this Court in R.Komariah v. Special Court under A.P. Land Grabbing (Prohibition) Act, which reads as under. “In the instant case, the applicant in her pleading has clearly stated that she purchased the schedule land by a registered sale deed dated 4-4-1968 and she has also referred to the title held by her vendor and the vendor’s vendor. It is also specifically alleged that the writ petitioner- respondent, taking advantage of the absence of the applicant and her husband from the city of Hyderabad, trespassed into the schedule land and grabbed the same under the guise of an ex parte ad hoc temporary injunction claimed to have been obtained by him in a suit. The applicant has also laid before the Special Court the prima facie evidence i.e., the registered sale deed dated 4-4-1968 in support of her claim. The applicant also claimed that the schedule land is not covered by Sy.No.78/3 and it is covered by Sy.No.63/2. It cannot be said that the material allegations in the application, if true, do not constitute ‘land grabbing’ within the meaning of that term under clause (e) of Section 2 of the Act. Therefore, the averments contained in the application of the applicant filed before the Special Court make out a case of ‘land grabbing’ envisaged under sub-section (1) of Section 8 of the Act. 13. According to the petitioner the first respondent had illegally entered into the land or usurped the land surreptitiously, therefore, the provisions of the Act are applicable and in support of this he relied upon the observations of this Court in the case of Anand Parbat Co-op. Housing Society Ltd. v. Special Court, which reads as under. “A person is a land grabber if he commits the act of land grabbing without any lawful entitlement and with a view to illegally take 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. In other words there shall be a sudden and unscrupulous seizure of the land with a view to appropriate the same for himself. The words “land grab” is nowhere defined in the Act, but the dictionary meaning says that it is “sudden grasp or clutch or unscrupulous seizure”. In other words “grab” means “grasp suddenly and eagerly” and hence appropriate unscrupulously. Thus there shall be some activity relating to possession or entering into land. “Land Grabbing” i.e., every activity of grabbing of any land without any lawful entitlement and with a view to illegally taking possession of such lands.” 14. The learned counsel also relied upon an unreported decision of this Court in Siripurapu Suryanarayana v. State of A.P. In that case the writ petitioner claimed that there was a grant in his favour in respect of the schedule property. Though the said grant expired by 31-3-1969 his possession cannot be treated as illegal or unauthorized, and therefore, the Special Court has no jurisdiction to decide the issue whether the petitioner was a land grabber and for ordering eviction. While considering the said claim of the writ petitioner, a Division Bench of this Court had gone into the issue whether a person enters into possession of the land in pursuance of a grant or lease by the Government