WP/3801/1996 of Sekharamahanti Nagabhushanarao(Died) Vs The Andhra University, on 31 December 2008

Conclusion

HON'BLE SRIJUSTICE GHULAM MOHAMMED&

THE HON'BLE SRIJUSTICE G.BHAVANI PRASAD

WRIT PETITION No.3801 of 1996

ORDER : ( per Hon’ble Sri Justice GhulamMohammed )

The Division Bench of this Court by order dated 28-9-2006allowed this writ petition, which is in the following terms:

“In view of the decision taken by this Bench inJONNALAGADDA SAMRAJYAM Vs. THE REGISTRAR, SPECIAL COURTCOUSTITUTED UNDER THE AP LAND GRABBING (P) ACT, 1982, in WPNo.19619 of 2002 and batch, dated 23-8-2006, the instantwrit petition shall have to be disposed of in terms thereof. Theapplicant herein is statutory authority, namely, AndhraUniversity. It filed an application under Section 7-A of the APLand Grabbing (Prohibition) Act, 1982, against the writpetitioner. Such an application cannot be maintained is thedecision of this Court in the judgment referred to hereinabove.

The writ petition is, therefore, allowed. But, under thecircumstances, there shall be no order as to costs.”

2. It is on record that that the judgment in JONNALAGADDASAMRAJYAM Vs. THE REGISTRAR, SPECIAL COURTCOUSTITUTED UNDER THE AP LAND GRABBING (P) ACT,1982,in WP No.19619 of 2002 and batch, dated 23-8-2006 wassubject matter of review in Rev.WPMPs No.30191 of 2006 and batch. The Division Bench of this Court reviewed the judgmentreferred to above and allowed the review petitions, in result thejudgment in Jonnalagadda Samrajyam’s case has been reversed. Perhaps, in view of this, the applicant-Andhra University,inasmuch as, this writ petition filed by the respondent in the LGCwas allowed following the decision in Jonnalagadda Samrajyam’scase, and that decision has been reversed in review petitions, filedSLP being SLP (C) No.4436 of 2007 before the Apex Court. TheApex Court by order dated 3-7-2007 passed the following order:

“Counsel for the respondents is present on caveat andwith the consent of the parties, we dispose of the matter at thisstage. We have heard counsel for the parties. Delay condoned.Leave granted.

In the instant case, the High Court relying upon an earlierdecision of the High Court held that the land belonging to theappellant-University cannot be the subject matter of the AndhraPradesh Land Grabbing (Prohibition) Act, 1982. It is brought toour notice that the aforesaid earlier judgment of the High Courthas been reviewed by the High Court in Review Writ PetitionMiscellaneous Petition Nos.30191/2006, 30098/2006 etc. etc.and has been reversed. A copy of the said judgment has beenproduced before us. In this view of the matter, we dispose ofthis appeal by setting aside the impugned judgment and orderof the High Court and remitting the matter to the High Court tore-consider the matter on merits in the light of the judgment ofthe High Court in Review Writ Petition Miscellaneous PetitionNos.30191/2006, 30098/2006 etc. etc. including the question ofapplicability of the Andhra Pradesh Land Grabbing (Prohibition)Act, 1982. It appears that an interim order was operating while the matter was pending before the High Court. The said ordershall continue to operate unless the High Court vacates thesame or modifies the same. The appeal is allowed. No order asto the costs.

3. Pursuant to the directions of the Apex Court in SLP, the matter is listed before us. The instant writ petition is filed againstthe order dated 2-1-1996 passed in LGC No.31 of 1989 by theDistrict Judge at Visahkapatnam.

4. The writ petitioner herein (since deceased) by LRs is therespondent in the LGC and the Andhra University, Visakhapatnam,represented by its Registrar, is the applicant in LGC. For brevity,the parties hereinafter will be referred to, as they were arrayed in LGC. The applicant filed the LGC under sub-Section (1) of Section7-A of the AP Land Grabbing (Prohibition) Act, 1982, (for short,‘the Act’) seeking eviction of the respondent-writ petitioner hereinfrom the petition schedule mentioned land measuring an extent of1080 sq. yards of site out of Ac.2-87 cents situate in Sy.No.34 ofSivajipalem, Defence, Visakhapatnam, (for short, ‘the land inquestion’) and deliver vacant possession of the same to theapplicant.

5. As per the averments contained in the concise statementof facts, the land in question was acquired for the applicant-AndhraUniversity by the Special Tahasildar (Land Acquisition),Visakhapatnam, as per the proceedings in award No.26 of 1969, dated 28-10-1969 and after the award, the land in question wasdelivered to the applicant on 12-12-1969. It is stated that eversince, the land in question is in possession and enjoyment of theapplicant. That the respondent who purchased the adjacent land inSy.No.33 encroached into the land in question which is atriangular bit belonging to the applicant which measured 1080 sq.yards. That the respondent grabbed the land in question the year1981. That with regard to the same land, the respondent filed civilsuit OS No.78 of 1989 on the file of IV Addl. District MunsifVisakhapatnam, against the applicant.

6. The respondent contested the matter by filing counteraffidavit, inter alia, stating that the LGC filed by the applicant wasnot maintainable and that the applicant, in order to establish theirtitle and possession, ought to have filed a civil suit. That the landin question does not belong to the applicant or the Government,but the respondent and his predecessors-in-title have been inpossession and enjoyment of the land beyond the statutory period.That the applicant never paid any taxes in respect of the land inquestion and the applicant was not in possession of the land inquestion and, therefore, the LGC was liable to be dismissed.

7. Basing on the respective pleadings, the Court below framed the following point for consideration:- “Whether the applicant has got title to the suit site, if so,the respondent is a land grabber and is liable to be evicted anddeliver vacant possession of the same to the applicant ?

8. Both sides adduced oral and documentary evidence. Insupport of the case of the applicant, two witnesses were examinedand Exs.A-1 to A-5 were marked. On behalf of the respondent, therespondent himself got examined as RW-1 and marked Exs.B-1 toB-5.

9. The Court below considering the evidence adduced, bothoral and documentary, allowed the LGC and directed therespondent (writ petitioner herein) to vacate and give vacantpossession of the land in question to the applicant-AndhraUniversity within two months from the date of the order, failingwhich the applicant was given liberty to get the respondent evictedfrom the land in question and take vacant possession of it by dueprocess of law. Hence, this writ petition by the respondent.

10. Sri Vedula Venkataramana, learned counsel appearing onbehalf of Sri VVN Narayana Rao, learned counsel for thepetitioner, strenuously contended that the act of land grabbing canonly be in respect of the land belonging to the Government, a localauthority, a religions or charitable institution or endowmentincluding a wakf or any other private persons and since the land inquestion is being claimed by an University, not covered underSection 2 (e) of the Act, the land grabbing case filed was not withinthe jurisdiction of the Special Tribunal. It is further contended thatthe provisions of the Act are not applicable to the case of therespondent-writ petitioner since 1927 the right, title and possession over the land in question by the respondent was neverchallenged by the applicant-Andhra University. It is alsosubmitted that the possession over the land in question is beyondthe statutory period and the respondent-writ petitioner hasperfected title by adverse possession. In support of hiscontentions, learned counsel relied on the decision in MOHDSIDDIQ ALI KHAN v. SHAHSUN FINANCE LTD., CHENNAI(FB)[1].

11. Learned Advocate General representing learned standingcounsel for the respondent-Andhra University submitted that theexpression ‘local authority’ though not defined to include aUniversity, in view of the expression of the definition ‘localauthority’ in Section 3 (31) of the General Clauses Act, 1897 andalso Article 304 of the Andhra Pradesh Financial Code, aUniversity created under a statute comes within the expression‘local authority’. It is also submitted that in view of the financialaid granted to the University and there is deep and pervasive Statecontrol, the applicant-Andhra University is ‘State’ within themeaning Article 12 of the Constitution and, therefore, the LGC filedis maintainable. It is further contended that the Special Tribunalhaving considered the evidenced by the applicant-Universityallowed the LGC case and there are no grounds warrantinginterference by this Court in exercise of jurisdiction under Article226 of the Constitution. Reliance is placed on the decisions in ELECTRICITY BOARD, RAJASTHAN v. MOHAN LAL[2]& UNIONOF INDIA v. R.C. JAIN[3].

12. Having heard the learned counsel for the parties, andhaving perused the order passed in Rev.WPMP Nos.30191 of2006 and batch by the Division Bench of this Court, and also thematerial on record, the points that fall for our consideration in thiscase are:-

1. Whether the applicant-Andhra University would comewithin the expression of “local authority” as contained inSection 2 (e) of the Act and can maintain the LGC undersub-Section (1) of Section 7-A of the Act ?within the expression of “local authority” as contained inSection 2 (e) of the Act and can maintain the LGC undersub-Section (1) of Section 7-A of the Act ?

2. Whether the applicant-Andhra University has got title tothe land in question; &the land in question; &

3. Whether the respondent (writ petitioner) is landgrabber, as alleged by the applicant-Andhra University ?grabber, as alleged by the applicant-Andhra University ?

Point No.1 :

13. Before dealing with points 2 and 3, it is trite to render afinding on the 1[st] point. Clauses (cc), (d), (e), (g) & (h) (i-b) ofSection 2 of the Act reads thus:

2. Definitions : - In this Act, unless the contextotherwise requires, --

(cc) “land belonging to a private person” means any landbelonging to–

(i) an evacuee;

(ii) a military personnel; or

(iii) any other private individual.

The value or the extent of which or the nature of the evilinvolved shall be of substantial nature or in the interest ofjustice required”.

(d) "land grabber" means a person or a group of personswho commits land grabbing and includes any personwho gives financial aid to any person for taking illegalpossession of lands or for construction of unauthorisedstructures thereon, or who collects or attempts to collectfrom any occupiers of such lands rent compensation andother charges by criminal intimidation, or who abets thedoing of any of the above mentioned acts; and alsoincludes the successors in interest; (e) "land grabbing" means every activity of grabbing ofany land (whether belonging to the Government, a localauthority, a religious or charitable institution orendowment, including a wakf, or any other privateperson) by a person or a group of persons, without anylawful entitlement and with a view to illegally takingpossession of such lands, or enter into or create illegaltenancies or lease and licences agreements or any otherillegal agreements in respect of such lands, or toconstruct unauthorised structures thereon for sale or hire,or give such lands to any person on rental or lease andlicence basis for construction, or use and occupation, ofunauthorised structures; and the terms "to grab land"shall be construed accordingly;"

(g) “person” includes a group or body of persons, anassociation, or a religious or charitable institution orendowment, whether incorporated or not;(h) (i-b) “Special Tribunal” means a Court of the District Judgehaving jurisdiction over the area concerned and includes ChiefJudge, City Civil Court, Hyderabad”

14. Clause (cc) the expression “land belonging to a privateperson” bring within the ambit of the said expression an evacuee,military personnel and any other private individual. The definition ofthe expression “land belonging to a private person” is not exhaustive as it is to be read in conjunction with the definition of “person” as givenin Clause (g) of Section 2 of the Act which includes a group or body ofpersons, an association, or a religious or charitable institution or endowment, whether incorporated or not.

15. Clause (d) the expression "land grabber" takes in its fold, i. a person or a group of persons who commits land grabbing; ii. a person who gives financial aid to any person for (a) taking illegalpossession of the lands, or (b) construction of unauthorisedstructures thereo; iii. a person who collects or attempts to collectfrom any occupiers of such lands rent, compensation and othercharges by criminal intimidation; iv. a person who abets the doingof any of the above mentioned acts; and v. the successors ininterest of such a person.

16. Clause (e) the expression "land grabbing" includes; i. every activity of grabbing of any land (whether belonging to theGovernment, a local authority, a religious or charitable institutionor endowment, including a wakf, or any other private person) by aperson or group of persons; ii. such grabbing must be withoutany lawful entitlement and with a view to, (a) illegally takingpossession of such lands; or (b) to enter into or create illegaltenancies, lease and licences agreements or any other illegalagreements in respect of such lands; or (c) to constructunauthorised structures thereon for sale or hire; or (d) to give such lands to any person on rental or lease and licence basis forconstruction, or use and occupation of unauthorised structures.

17. It is the case of learned counsel appearing for therespondent-writ petitioner that the applicant-University not beingspecified in Clause (e) of Section 2 of the Act, the Special Tribunal has no jurisdiction over the subject matter and the provisions ofthe Act are not applicable to the case. In other words, the learnedcounsel seeks to contend that the act of land grabbing is to beconfined only to the cases of land grabbing by the land grabber inrespect of the lands belonging to the Government, a localauthority, a religious or charitable institution or endowment,including a wakf, or any other private persons.

18. Though the definition of the expression “land belonging to aprivate person” is sought to be explained in Clause (cc), theexpression “a local authority”, with which we are concerned, isnot defined in the Act. In such situations, recourse shall have tobe taken to other modes to know the meaning of the expression “alocal authority” appearing in Clause (e) of Section 2 of the Act. According to Webster’s Dictionary “Authority” means a person orbody exercising power to command. In the context of Article 12 ofthe Constitution, the word “authority” means the power to makelaws, orders, regulations, bye-laws, notifications etc. which havethe force of law and power to enforce the laws. Article 12 of theConstitution the expression “other authorities” is used aftermentioning a few of them, such as, the Government, Parliament ofIndia, the Government and Legislature of each of the States andlocal authorities. In Electricity Board, Rajasthan’s case (2 supra), the Apex Court held that the expression “other authorities” is wideenough to include all authorities created by the Constitution or statute on whom powers are conferred by law.

19. In RAMANA DAYARAM SHETTY v. THE

INTERNATIONAL AIRPORT AUTHROITY OF INDIA,[4] the ApexCourt has held that if a body is an agency or instrumentality ofgovernment it is an “authority” within the meaning of Article 12 ofthe Constitution. But what is the test to decide whether a body isan agency or instrumentality of government, the Court laid downthe following tests:-

1. financial resources of the State is the chief fundingsource i.e. if the entire share capital of the Corporation isheld the Government, 2. existence of deep and pervasiveState control, 3. functional character being governmental inessence i.e. if the functions of the corporation are of publicimportance and closely related to governmental functions, 4.if a department of Government is transferred to acorporation, 5. whether the corporation, enjoys monopolystatus which is State conferred or State protected. However the Court said that these tests are not conclusivebut illustrative only.

20. “Local Authorities” as defined in Section 3 (31) of theGeneral Clauses Act refers to authorities like municipalities,district boards, panchayats or other authority legally entitled to, orentrusted by the Government with the control of management of amunicipal or local fund. In RC Jain’s case (3 Supra), the ApexCourt while considering Section 3 (31) of the General Clauses Actheld that Delhi Development Authority is a local authority. Para 2

of judgment reads thus:

“An authority, in order to be a local authority, must beof like nature and character as a Municipal Committee,District Board or Body of Port Commissioners, possessing,therefore, many, if not all, of the distinctive attributes andcharacteristics of a Municipal Committee, District Board, orBody of Port Commissioners, but, possessing one essentialfeature, namely, that it is legally entitled to or entrusted bythe Government with, the control and management of amunicipal or local fund. The authorities must have separatelegal existence as Corporate bodies. They must not be mereGovernmental agencies but must be legally independententities. Next, they must function in a defined area and mustordinarily, wholly or partly, directly or indirectly, be electedby the inhabitants of the areas. Next, they must enjoy acertain degree of autonomy, with freedom to decide forthemselves questions of policy effecting the areaadministered by them. The autonomy may not be completeand the degree of the dependence may vary considerablybut, an appreciable measure of autonomy there must be.Next, they must be entrusted by Statute with suchGovernmental functions and duties as are usually entrustedto municipal bodies. Broadly, they may be entrusted with theperformance of civic duties and functions which wouldotherwise be Government duties and functions. Finally, theymust have the power to raise funds for the furtherance oftheir activities and the fulfillment of their projects by levyingtaxes, rates, charges, or fees. This may be in addition tomoneys provided by Government or obtained by borrowingor otherwise. What is essential is that control ormanagement of the fund must vest in the authority.”

21. Article 304 clause (iii) of the AP Financial Code deals withEducation Funds i.e. the fee funds of Universities etc. Article 306of the AP Financial Code regulates the payment of the variousclasses of grants to local bodies, e.g., grants for hospitals anddispensaries, grants for the maintenance of roads and educationalgrants, is governed by the general or special orders of theGovernment in regard to each class of grant.

22. In the instant case the applicant-Andhra University is aUniversity created under a statute, fiscal funding, existence ofdeep and pervasive State control is present. The functions of theUniversity are imparting higher education in various fields to theaspiring students. The Government of AP has dominant role andthe Andhra University function under the supervision of theGovernment.

23. In UMESH v. VN Singh,[5]The Full Bench of Patna HighCourt, held that Patna University is “a State” for the purpose ofArticle 12 of the Constitution as it is a public statutory bodycreated by the appropriate Act of the Legislature and it has beenempowered to make Statues, Ordinances and Regulations by theLegislature and the laws made by the University in exercise ofthese powers will come within the definition of “law” as given inArticle 13 (3) (a) of the Constitution, and consequently they mustconform to the fundamental rights provided in Part III of theConstitution.

24. In the light of the above analysis, it is to be held thatAndhra University comes within the meaning of the term “localauthority” as used in Clause (e) of Section 2 of the Act and thepoint is answered accordingly.

Points 2 & 3:

25. It is settled proposition of law that when an activity of landgrabbing is complained of, the aggrieved party is at liberty toapproach the Special Tribunal or the Special Court, as the casemay be, but not the civil Court. If an act of land grabbing is notcomplained of by the party, in view of the language used in Clause(e) of Section 2 of the Act, the Special Tribunal or the SpecialCourt, as the case may be, cannot get jurisdiction to deal with thematter. Therefore, the act of land grabbing is the criteria whichdetermines the jurisdictional issue in between the civil Court andthe special Tribunal or the Special Court, as the case may be,under the Act. This jurisdictional aspect is certainly not in respectof a territorial jurisdiction or pecuniary jurisdiction, butjurisdictional aspect over the subject matter of the dispute.

26. Section 3 of the Act declares the land grabbing to be anoffence punishable under the Act; Section 4 of the Act prohibitsland grabbing; Section 5 of the Act prescribes the penalty for otheroffences in connection with land grabbing; Section 6 of the Actdeals with the offences by the Companies; and Section 7 of theAct provides for constitution of Special Courts.

27. Section 9 of the Act invests the powers of the Civil Courtsas well as the Court of Session in the Special Court and makesthe provisions of the Code of Civil Procedure as well as the Codeof Criminal Procedure applicable to the proceedings before theSpecial Court, save as expressly provided under the Act. Section10 of the Act deals with the burden of proof; and Section 12 of theAct deals with sanction for prosecution of the offence under theAct.

28. In Mohd Siddiq Ali Khan’s case, (1 supra), the Full Benchof this Court observed that Special Court may either issue suomotu or on application take cognizance of and try every casearising out of any alleged act of land grabbing. The Special Courtis also conferred with the power to try with respect to theownership and title to, or lawful possession of, the land grabbed. Itis not entitled to try every case involving disputes as to theownership and title to any land but is entitled to go into thequestion of ownership and title to, of lawful possession of, the landgrabbed. The Special Court is conferred with the exclusivejurisdiction to try every case arising out of any alleged act of landgrabbed. The jurisdiction of the ordinary Civil Courts to that extentis taken away by the Special Court. That for the purpose of takingcognizance of the case, the Special Court is required to considerthe location, or extent or value of the land alleged to have beengrabbed or of the substantial nature of the evil involved or in the

interest of justice required or any other relevant matter, for whichpurposes the Special Court is required to hear the petitioner. If theSpecial Court is of the opinion that if any case brought before it, isnot a fit case to be taken cognizance of, it may return the same forpresentation before the Special Tribunal. The Special Court is dutybound to reject any application filed before it, if in its opinion, suchapplication, prima facie, is frivolous or vexatious one. It isinvested with exclusive jurisdiction to try all offences punishableunder the Act.

29. Rule 6 of the Rules framed under the Act provides thatevery application filed under Sub-section (1) of Section 8 of theAct or every case taken cognizance of suo motu by the SpecialCourt may be referred for local inspection or verification or bothby the Mandal Revenue Officer having jurisdiction over the area orby any other Officer of the Government authorized by the Court inthat behalf. The Mandal Revenue Officer to whom the applicationhas been referred shall make or cause to be made an inspectionor verification or both, as soon as may be practicable and shallsubmit a full and complete report with reference to Revenue Records and facts on ground as to the following:-

(i) the correctness of the statements made in theapplication with regard to columns 1 to 15 and 19 inForm-1;

(ii) the facts relating to ownership, actual possession anduse of the land concerned; and

(iii) such other particulars and information as would beuseful to the Court to arrive at a correct decision on the

30. The Mandal Revenue Officer to whom the application hasbeen referred shall also furnish copies of the extracts of theGovernment records to show the survey number and sub-divisionnumber and proof of possession, ownership and us of the land andthe payment of dues to the Government. A copy of the report maybe furnished to the applicant, to the respondents and otherpersons, if any having interest in the land on payment of copyingcharges and this Rule is required to be read along with Section 8and Section 7-A of the Act, which deal with procedure and powersof the Special Courts to take cognizance of and try every casearising out of any alleged act of land grabbing.

31. The report submitted by the Mandal Revenue Officer,obviously, renders valuable assistance to the Special Court inorder to decide as to whether the application filed is a fit case tobe taken cognizance of. In our considered opinion, reference ofevery application under Sub-section (1) of Section 8 of the Act oron application filed under Sub-section (1) of Section 7-A of the Act,for local inspection or verification or both by the Mandal RevenueOfficer before the Special Court or the Special Tribunal takescognizance of the case is a mandatory requirement and it cannotbe bypassed.

32. In SHALIVAHANA BUILDERS PVT. LTD. V. SRIGANAPATHY CO-OPERATIVE HOUSING SOCIETY[6]'s case, the

Division Bench of this Court held that "every application shallhave to be scrutinized in order to decide as to whether the same isfrivolous or vexatious one. "Unless the Court comes to theconclusion that it is a fit case to be taken cognizance of, it cannotproceed further in the matter. In order to decide as to whether theapplication filed prima facie is frivolous or vexatious and in orderto enable the Special Court to form its opinion the Court may lookinto the report of the Mandal Revenue Officer having jurisdictionover the area since such report essentially contains the details ofthe correctness of the statements made in the application and thefacts relating to ownership, actual possession and user of the landconcerned, etc. It is in this background the verification ofapplication and submission of the report by the Mandal RevenueOfficer or the authorized officer, as the case may be, are to beconsidered as mandatory requirements. In the absence of suchreport the Court may not be in a position to form its opinion inorder to decide as to whether the application filed is a fit case tobe taken cognizance of. The objections preferred by the interestedpersons of any pursuant to notice issued in accordance with theRule 7 may also have to be taken into consideration for thepurposes of forming the opinion by the Special Court that it is a fitcase to be taken cognizance of."

33. Admittedly, in this case the Special Tribunal, as requiredunder Rule 6 of the Rules framed under the Act, before takingcognizance of the case, has not referred the case for local inspection or verification by the Mandal Revenue Officer havingjurisdiction over the area or by any other Officer of theGovernment authorized by the Court in that behalf. The decision ofthe Full Bench of this Court in Mohd Siddq Ali Khan’s case (1supra) is to the effect that the Special Court or the SpecialTribunal, as the case may be, is required to follow the procedureunder Rule 6 of the Rules framed under the provisions of the Actand it is mandatory. Inasmuch as that procedure was not followedby the Special Tribunal, in the instant case, we are of the view thatthe matter has to be remanded to the file of the Special Tribunalfor following the rules made under the provisions of the Act andrender a finding based on the reports of the Mandal RevenueOfficer having jurisdiction over the area or by any other Officer ofthe Government authorized by the Court in that behalf. In this viewof the matter, we refrain to record any opinion on points 2 and 3.34. In the result, the writ petition is allowed and the matter isremanded to the file of the Special Tribunal for considering afreshin the light of the above observations and to pass orders inaccordance with law. No order as to costs.

_____________________

Ghulam Mohammed, J

_____________________

G. Bhavani Prasad, J

12005 (2) ALD 6752AIR 1967 SC 18573AIR 1981 SC 9514AIR 1979 SC 16285AIR 1968 PATNA 362003 (2) ALD 476