GOVERNMENT OF TAMIL NADU & OTHERS versus R. THAMARAISELVAM ETC. ETC. on 4 May 2023

1. Feeling aggrieved and dissatisfied with the impugned commonjudgment and order dated 10.02.2015 passed by the High Court ofJudicature at Madras in Writ Petition No. 18872/2011 and other alliedEwrit petitions, by which the High Court has allowed the said writ petitionsand has quashed G.O. (Ms.) No. 423, Home (Police XI) Departmentdated 28.07.2011 (hereinafter referred to as ‘G.O. No. 423 dated28.07.2011’) as well as G.O.(Ms.) No. 451, Home (Court III) Departmentdated 11.08.2011 (hereinafter referred to as ‘G.O. No. 451 dated11.08.2011’), the State of Tamil Nadu has preferred the present appeals.F

1.1 Criminal Appeal No. 275/2022 has been preferred challengingthe impugned order dated 04.11.2020 passed by the High Court ofJudicature at Madras in Criminal O.P. No. 23641/2019, by which theHigh Court has directed to transfer the case being C.C. No. 2 of 2012from the Court of Special Judicial Magistrate, Land Grabbing, Erode toGthe file of Judicial Magistrate-II, Erode.

2. Vide G.O. No. 423 dated 28.07.2011, the State of Tamil Nadusanctioned formation of 36 Anti Land Grabbing Special Cells in TamilNadu with one cell each at the State Police Headquarters, 7Commissionerates and 28 Districts to deal with the Land Grabbing CasesHin the State. Consequent upon the said G.O., another G.O. bearing No.

451 dated 11.08.2011 came to be issued and the Land Grabbing Caseswere ordered to be transferred to the Special Courts which wereconstituted exclusively to deal with the Land Grabbing Cases. Theaforesaid G.Os were the subject matter of the writ petitions before theHigh Court.

2.1 By the impugned common judgment and order, the High Courthas set aside G.O. No. 423 dated 28.07.2011 by holding that the samedoes not lay down any yardstick or guideline to pick and choose andselect particular cases against particular persons said to have indulgedin land grabbing and in the absence of definition of the word/phrase“Land Grabbing”, discretion is vested with the police personnel attachedto the Anti-Land Grabbing Cell to pick and choose against whom theywant to register FIR and proceed with the investigation and on accountof the same, the possibility of abuse and misuse of power cannot beruled out. While quashing and setting aside G.O. No. 423 dated 28.07.2011,the High Court has also observed that the State Government is at libertyto bring any appropriate legislation along the lines of the A.P. LandGrabbing (Prohibition) Act, 1982 or better legislations de hors the resultof the writ petitions. Consequently, the High Court has also quashed andset aside G.O. No. 451 dated 11.08.2011. The impugned common judgmentand order passed by the High Court is the subject matter of present CivilAppeals.

3. Shri R. Shunmugasundaram, learned Advocate General hasappeared on behalf of the State of Tamil Nadu.

3.1 Learned Advocate General appearing for the State of TamilNadu has vehemently submitted that the High Court has erred in quashingthe Government Orders by holding that in the absence of definitionpertaining to offence of “Land Grabbing”, the Special Cells constitutedfor investigating the cases pertaining to land grabbing are not competentto investigate those kind of cases.

3.2 It is further submitted that the High Court has erred in quashingand setting aside G.O. No. 423 dated 28.07.2011 on the possibility ofabuse and misuse of power by the police officers. That the possibility ofabuse or misuse of a provision by the authority cannot be a ground for alegislation to be held to be arbitrary or violative of Article 14 of theConstitution of India.

3.3 It is next submitted that the High Court has failed to appreciatethat the Special Cells were constituted to deal with the specific problem A

BC

D

E

F

G

H

Ain the State of Tamil Nadu where large number of complaints are beingfiled alleging that goondas by using their muscle power have forciblyoccupied lands.

3.4 It is contended that the High Court ought to have appreciatedthat the expression “Land Grabbing” does not need any specific definitionBas the said expression relates to Sections 447, 420 and 506 of the IndianPenal Code.

4. We have heard learned Advocate General on behalf of theState of Tamil Nadu at length. We have gone through the commonimpugned judgment and order passed by the High Court. We have alsogone through G.O. No. 423 dated 28.07.2011, which reads as under:

C

“HOME (POL-XI) DEPARTMENT

G.O.(Ms) No. 423

Dated: 28.07.2011

From the Director General of Police, Chennai – 4,letter Re:No.:176388/RA I (2)/2011, dated : 13.07.2011

DO R D E R:-

In the Press Release dated: 10.07.2011, the Hon’ble ChiefMinister has made an announcement that Anti Land GrabbingSpecial Cells will be formed in Tamilnadu to deal with the Landgrabbing cases in the State.

E

2. Based on the announcement made by Hon’ble Chief Minister,the Director General of Police has sent necessary proposals tothe Government for the formation of 39 Anti Land Grabbing SpecialCells with 410 Police personnel to deal with the land grabbingcases in the State with the financial commitment forRs.27,71,11,658/-.

F

3. The Government after careful examination have decided toaccept the proposal of the Director General of Police with certainmodifications and accord administrative sanction for the formationof 36 Anti Land Grabbing Special Cells in Tamilnadu with one celleach at the State Police Headquarters, 7 Commissionerates and28 Districts except Karuru, Tiruvannamalai and NagappattinamDistricts for a period of one year on temporary basis. In case ofthose three Districts, the District Crime Branch will handle theinvestigation of land grab complaints. The Staff pattern of 36 AntiLand Grabbing Special Cells in Tamilnadu is indicated in the G

H

Annexure-I of this order. The Government also accord financialsanction for a sum of Rs. 20,02,08,842/- (Rupees Twenty Crores,two lakhs, eight thousand, eight hundred and forty two only) forthe formation of 36 Anti Land Grabbing Special Cells. The recurringand non- recurring expenditure are Rs. 12,51,01,380/- and Rs.7,51,07,462/- respectively, as indicated in the Annexure-II to IVof this order.

4. The expenditure sanctioned in para 3 above shall be debitedunder the relevant following head of account:

“2055-00-Police – under respective sub-heads”

5. The expenditure is an item of “New Service”. The approval ofthe Legislature will be obtained in due course. Pending approvalof the Legislature, the expenditure will be initially met by an advancefrom the contingency fund, orders regarding which will be issuedby the Finance (BG.I) Department separately. The DirectorGeneral of Police, Chennai is requested to apply for an advancefor the required amount from the contingency fund in the currentyear to the Government in Finance (BG.I) Department in theprescribed proforma together with a copy of this order. He is alsodirected to send a draft explanatory note, indicating the total costof the scheme, the cost that would be required for theimplementation during the financial year etc. to GovernmentFinance (BG-I) Department for inclusion of the expenditure inthe supplementary estimates, for bringing it to the notice of thelegislature in due course.

6. This order issues with the concurrence of the FinanceDepartment vide its U.O. No. 39471/CMPC/2011-1, dated28.07.2011 and Additional Sanction Ledger No: 337 (Three hundredand thirty seven).

(BY ORDER OF THE GOVERNOR)

RAMESHRAM MISHRA

PRINCIPAL SECRETARY TO GOVERNMENT”

5. By the aforesaid G.O., the Government of Tamil Nadu hasconstituted/formed 36 Anti Land Grabbing Special Cells to deal with theland grabbing cases. However, it is required to be noted that the type ofcases can be said to be land grabbing cases has not been defined and/ormentioned in the said G.O. Therefore, it will be at the discretion of the AB

CD

E

F

G

H

Aconcerned police officers to treat and/or consider any case relating toland as land grabbing case, which shall be investigated by the Anti- LandGrabbing Special Cell, rather than by the police officers under the Cr.P.C.It is required to be noted that as such there is no Anti-Land GrabbingAct in the State of Tamil Nadu like A.P. Land Grabbing (Prohibition)Act, 1982 or Karnataka Land Grabbing Prohibition Act, 2011 or similarBLand Grabbing Prohibition Acts in other States. It is required to benoted that in the other Land Grabbing Prohibition Acts applicable in theStates of Andhra Pradesh, Karnataka, Gujarat and Assam, “LandGrabbing” is specifically defined. Even the term “Land Grabber” isdefined. For example, in Andhra Pradesh Land Grabbing (Prohibition)CAct, 1982, “Land Grabber” and “Land Grabbing” are defined as under:“land grabber” means a person or a group of persons who commitsland grabbing and includes any person who gives financial aid toany person for taking illegal possession of lands or for constructionof unauthorised structures thereon, or who collects or attempts toDcollect from any occupiers of such lands rent, compensation andother charges by criminal intimidation, or who abets the doing ofany of the above mentioned acts; and also includes the successorsin interest.

“land grabbing” means every activity of grabbing of any landE(whether belonging to the government, a local authority, a religiousor charitable institution or endowment, including a wakf, or anyother private person) by a person or group of persons, withoutany lawful entitlement and with a view to illegally taking possessionof such lands, or enter into or create illegal tenancies or lease andlicences agreements or any other illegal agreements in respect ofFsuch lands, or to construct unauthorised structures thereon forsale or hire, or give such lands to any person on rental or leaseand licence basis for construction, or use and occupation, ofunauthorised structures; and the term “to grab and” shall beconstrued accordingly.G6. Insofar as the State of Tamil Nadu is concerned, it is an admittedposition that there is no specific enactment and/or Act to deal with landgrabbing cases, like Andhra Pradesh Land Grabbing (Prohibition) Act,1982 and the Anti-Land Grabbing Special Cells have been formed byG.O. No. 423 dated 28.07.2011 to exclusively deal with the land grabbingcases. In absence of any guidelines and/or definition as to which casesH

can be said to be land grabbing cases, it gives unfettered and unguidedand arbitrary powers to the police to treat any land case as a land grabbingcase which will be investigated by the Anti-Land Grabbing Special Cell.Even a dispute between two private persons which may be under theSpecific Relief Act and/or Transfer of Property Act may be consideredas a land grabbing case like in Criminal Appeal No. 275/2022 in which aCivil Suit was pending for specific performance which was dismissedfor non-prosecution and thereafter the defendant filed a complaint/FIRfor the offences under the IPC. Therefore, as such, it is rightly held andobserved by the High Court that in absence of any specific guidelineand/or definition of “land grabbing cases,” such powers can be abusedor misused and such powers can be said to be exercised arbitrarily.Therefore, the High Court has rightly set aside G.O. No. 423 dated28.07.2011 with liberty to the State Government to bring any appropriatelegislation on the lines of A.P. Land Grabbing (Prohibition) Act, 1982 orbetter legislations after defining and/or providing the guidelines as towhich offences can be said to be “land grabbing cases”. Therefore, theimpugned judgment(s) and order(s) passed by the High Court does/donot call for any interference by this Court.

7. Under the circumstances, Civil Appeals preferred by the Statedeserve to be dismissed and are accordingly dismissed.However, wereiterate that if the State Government is so conscious and/or interestedin taking action against land grabbers, it will be open for the StateGovernment to bring an appropriate legislation with the clear definitionof “land grabber” and “land grabbing” or better legislations with a cleardefinition of “land grabbing”, ”land grabber” and “land grabbing cases”and the present order shall not come in their way to enact such legislationand/or better legislations.

8. In view of the above, Criminal Appeal No. 275/2022 whichwas with respect to private persons by which the Criminal case betweenthe parties is ordered to be transferred to the regular Court from theSpecial Court (Land Grabbing) deserves to be dismissed and is accordinglydismissed.

Nidhi Jain(Assisted by : Rakhi, LCRA)

Appeals dismissed.

A

B

C

D

E

F

G

H