Mohd. Siddiq Ali Khan vs Shahsun Finance Limited on 11 March, 2005

ORDER

B. Sudershan Reddy, J.

1. The order passed by the Special Court under the A.P. Land Grabbing (Prohibition) Act, 1982 (for short ‘the Act’) taking cognizance of the case filed by the 1st respondent against the writ petitioners is impugned in this batch of writ petitions.

2. That in order to consider as to whether the Special Court committed any illegality in taking cognizance of the case under Section 8(1) of the Act, a few relevant facts leading to filing of this batch of writ petitions are required to be noticed.

3. The 1st respondent herein filed land-grabbing case (for short ‘L.G.C.’) in the Special Court against the writ petitioners and other with a prayer to;

(a) declare the respondents 1 to 21 (in the L.G.C.) as land grabbers of application schedule property i.e., all that piece of land in Survey Nos. 10 & 11 (T.S.No. 3) bearing Municipal No. 8-3-323, with sub and oblique numbers 8-3-323/1, 8-3-323/1/A, 8-3-323/2 to 12, 8-3-323/B, C, D and D1, situated in Yellareddyguda, Ameerpet, Hyderabad, Admeasuring 4,856 square yards out of the total extent of 5,811 square yards,

(b) declare the applicant (in the L.G.C.) as lawful owner of the application schedule property,

(c) direct the 1st respondent (in the L.G.C.) to vacate and hand over the vacant possession of the application schedule land to the applicant (in the L.G.C.),

(d) punish respondents 1 to 21 (in the L.G.C.) under the provisions of the A.P. Land Grabbing (Prohibition) Act, for the offence of land-grabbing,

(e) award compensation of Rs. 1.00 crore keeping the market value of the application schedule land in view, by directing the respondents 1 to 21 (in the L.G.C.) to pay the same to the applicant (in the L.G.C.) for grabbing the application schedule property.

4. In the L.G.C., it is, inter alia, alleged that the applicant (1st respondent in this batch of writ petitions) is the lawful owner of the piece of land with buildings in Survey Nos. 10 and 11 (T.S. No. 3) bearing Municipal No. 8-3-323, with sub and oblique numbers 8-3-323/1, 8-3-323/1/A, 8-3-323/2 to 12, 8-3-323/B, C, D and D1, situated at Yellareddyguda, Ameerpet, Hyderabad, admeasuring 4,856 square yards out of the total extent of 5,811 square yards, having purchased the same under the registered sale deed, dated 11-8-1995, from its lawful owner Smt. Ameernnisa Begum and her children for a valuable consideration and on the date of execution of the sale deed, the applicant was put in physical possession of the application schedule property, which continued to be in possession of the applicant (in the L.G.C.) till it was ‘grabbed’ by the 1st respondent (in the L.G.C.). It is asserted that the vendor of the applicant became owner of the said property and adjoining property having inherited the same from her mother and sister.

5. That according to the averments made in the L.G.C., one Nawab Mohd. Farooq Ali Khan became the owner of the property bearing old Municipal No. 186/1 to 50 (New Municipal Nos. 8-3-322 & 323, 8-3-323/1 to 21 and its sub and oblique numbers) Old Survey No. 88 & 89 (New Survey Nos. 10 & 11) containing main buildings, out house, garages, stables, mulgies with appurtenant land admeasuring 21,286 square yards situated at Yellareddyguda, Hyderabad, having purchased the same under the registered sale deed in the year 1355 Fasli (1946 (A.D.). Nawab Mohd. Farooq Ali Khan, in turn, sold away the said property to his wife Smt. Aktherunnisa Begum through a registered sale deed, dated 2-7-1947. Nawab Mohd. Farooq Ali Khan had two wives viz., (1) Smt. Aktherunnisa Begum, and (2) Smt. Aquila Begum. Nawab Mohd. Farooq Ali Khan died on 30-10-1957. Late Nawab had four sons through his first wife, Smt. Aktherunnisa Begum viz., (1) Mohd. Jaffer Ali Khan (died on 21-4-1959), (2) Mohd. Mahabood Hyder Khan (died) on 27-10-1981 (, (3) Mohd. Razak Ali Khan (died on 14-5-1969), and (4) Mohd. Afzal Ali Khan (died in 1970) and two daughters viz., (1) Smt. Ameerunnisa Begum, wife of Nawab Mir Tehwar Ali Khan (died on 21-8-1995), and (2) Smt. Ahmedunnisa Begum (died issueless on 25-11-1992).

6. The eldest son of late Nawab Mohd. Farooq Ali Khan, through Aktherunnisa Begum, by name Mohd. Jaffer Ali Khan had two wives viz., Taherunnisa Begum (Fatima Bee died) and Sayeedunnisa Begum (died) and the said Mohd. Jaffer Ali Khan died in 1959, leaving behind his two sons viz., (1) Md. Barkat Ali Khan, (2) Md. Younus Ali Khan, and two daughters viz., (1) Mujubunnisa Begum (2) Paikarunnisa Begum, through his first wife and 3 sons viz., (1) Md. Kazim Ali Khan, (2) Md. Talmur Ali Khan, (3) Md. Hasan Ali Khan, and 5 daughters viz., (1) Iqbalunnisa Begum, (2) Mazharunnisa Begum, (3) Maozamunnisa Begum, (4) Rasheedunnisa Begum @ Azeempasha, and (5) Noorunnisa Begum @ Habeeb Pasha, through his second wife.

7. The second son of Nawab Mohd. Farooq Ali Khan by name Mohd. Mahboob Hyder Khan died in 1981 and his wife Ayesha Begum died in August 1995, leaving behind 3 sons viz., (1) Md. Qamer Hyder Khan @ Rafeeq, (2) Md. Farooq Hyder Khan @ Ashfaq, and (3) Md. Ahmed Hyder Khan @ Mushtaq and five daughters viz., (1) Anesa Rabia, (2) Nafeesunnisa Begum, (3) Fareedunnisa Begum @ Shahjehan, (4) Farhatunnisa Begum, and (5) Mahboob Qudsia @ Baber.

8. The third son of late Nawab Mohd. Farooq Ali Khan, by name Mohd. Razak Ali Khan died in 1969 leaving his wife Smt. Mahboobunnisa Begum and 3 sons viz., (1) Md. Siddiq Ali Khan, Advocate, (2) Md. Mahmood Ali Khan, Advocate, and (3) Md. Hyder Ali Khan (died), and 4 daughters viz., (1) Safia – migrated to Pakistan, (2) Sadia – migrated to Pakistan, (3) Habeeba – migrated “to Pakistan, and (4) Atiya.

9. The fourth son of late Nawab Mohd. Farooq Ali Khab by name Mohd. Afzal Khan died in 1970 leaving behind his wife, Smt. Khaiserunnisa Begum, one son by name Md. Shahzoor Ali Khan (resident of Canada), and two daughters viz., (1) Sadatunnisa Begum @ Kauser, and (2) Liaqunnisa Begum.

10. One daughter of late Nawab Mohd. Farooq Ali Khan by name Ahmedunnisa Begum died issueless on 25-11-1992 and she was a divorcee by the date of her death.

11. The eldest daughter of late Nawab Mohd. Farooq Ali Khan by name Smt. Ameerunnisa Begum, wife of Nawab Mir Tehwar Ali Khan, died on 21-8-1995, leaving behind her six sons viz., (1) Mir Ahmed Ali Khan (died), (2) Mir Muzaffer Ali Khan, (3) Mir Amjad Ali Khan, (4) Mir Mozam Ali Khan, (5) Mir Mujahed Ali Khan, and (6) Mir Mustafa Ali Khan, and two daughters viz., (1) Iqbalunnisa Begum, and (2) Iftequarunnisa Begum.

12. The sale deed executed by late Nawab Mohd. Farooq Ali Khan in favour of his first wife Smt. Aktherunnisa Begum was challenged by their daughter Smt. Ameerunnisa Begum by filing O.S. No. 92 of 1967 (Old – O.S.No. 77 of 1964) on the file of the learned first Additional Judge’s Court, City Civil Court, Hyderabad, against her mother, surviving brothers, sister and the legal representatives of Mohd. Jaffer Ali Khan. The stepson of Smt. Aktherunnisa Begum by name Mohd. Yawar Ali Khan also filed a suit in O.S.No. 91 of 1967 (Old – O.S. No. 77 of 1963) on the file of the learned First Additional Judge’s Court, City Civil Court, Hyderabad, challenging the sale deed executed by late Nawab Mohd. Farooq Ali Khan in favour of his first wife Smt. Aktherunnisa Begum. The above suits were decided by a common judgment and decree, dated 31-8-1974, against which C.C.C.A. Nos. 34 of 1977 and 56 of 1978 were filed in this Court and the same were dismissed by a common judgment, dated 17-9-1984, confirming the trial Court’s judgment with some observations. Aggrieved by the same, Smt. Ameerunnisa Begum filed L.P.A. No. 109 of 1984 and the same was allowed by judgment, dated 19-12-1984, by deleting the observation made in the penultimate paragraph of the judgment in C.C.C.A. Nos. 34 of 1977 and 56 of 1978.

13. It is further averred in the L.G.C. that after filing of the appeals against the common judgment and decree, dated 31-8-1974, Noorunnisa Begum, daughter of Sayeedunnisa Begum and Late Mohd. Jaffer Ali Khan, filed O.S.No. 328 of 1983, for partition of Matruka property of late Nawab Mohd. Farooq Ali Khan or of late Smt. Aktherunnisa Begum, which is now pending on the file of the learned XI Additional Chief Judge’s Court, City Civil Court, Hyderabad. It is, however, pleaded that the said suit became infructuous in view of the judgment of this Court in C.C.C.A. Nos. 34 of 1977, 56 of 1978 and L.P.A. No. 109 of 1984. It is further pleaded that late Smt. Aktherunnisa Begum wife of late Nawab Mohd. Farooq Ali Khan, who is Sunni Muslim, had four sons and two daughters. All the four sons of Smt. Aktherunnisa Begum died during her lifetime and the children of the pre-deceased sons are not entitled to inherit the property of Smt. Aktherunnisa Begum. The two surviving daughters of Smt. Aktherunnisa Begum viz., Smt. Ameerunnisa Begum and Smt. Ahmedunnisa Begum succeeded to the properties of their mother Smt. Aktherunnisa Begum as per the Law of Inheritance applicable to Sunni Muslims. That Smt. Aktherunnisa Begum died on 13-10-1984 and her properties devolved upon her two surviving daughters in the ratio of 1/3rd share each. As there was no surviving son as on the date of the death of Smt. Aktherunnisa Begum, her two daughters became entitled to 2/3rd share and the remaining 1/3rd share to be reverted back to them under the Doctrine of Return. Thus, the two daughters of late Smt. Aktherunnisa Begum became entitled to the properties left behind by their mother in equal ratio of 50% + 50%.

14. That Smt. Ameerunnisa Begum and Smt. Ahmedunnisa Begum filed civil suits against the children of four pre-deceased sons of Smt. Aktherunnisa Begum, “who are in permissive occupation of part of the premises bearing No. 8-3-323 to the extent of 1955 square yards.” vide O.S.No. 8, 9, 10, 16 & 170 of 1987 etc. Smt. Mahaboobunnisa Begum, mother of respondents 19 to 21 (in the L.G.C.), and Md. Mahmood Ali Khan, respondent No. 20 (in the L.G.C.), filed O.S. No. 117 of 1998 and O.S. No. 118 of 1998, respectively, for declaration of title in respect of 1,306 square yards in H.No. 8-3-323, and 600 square yards in H.No. 8-3-323/1. Smt. Ameerunnisa Begum and Smt. Ahmedunnisa Begum also filed suits against some of the tenants of their late mother in O.S.Nos. 1, 2, 3, 4, 5 & 7 of 1992 and 105 of 1998, on the file of the learned XI Additional Chief Judge’s Court, City Civil Court, Hyderabad. All the suits are pending.

15. The summum bonum of the contention of the applicant in the L.G.C. is that Smt. Amhedunnisa Begum, the second daughter of Smt. Aktherunnisa Begum, died issueless on 25-11-1992, with the result, Smt. Ameerunnisa Begum became the sole owner of the properties of her mother Smt. Aktherunnisa Begum as per the Law of Inheritance. The said Ameerunnisa Begum as sole owner of the properties executed the sale deed, dated 11-8-1995, in favour of the applicant (in the L.G.C.), and her six sons and two daughters have also signed the sale deed along with their mother. That apart from the sale deed for 4,856 square yards, Smt. Ameerunnisa Begum and her children have also executed registered agreement of sale, dated 22-6-1995, for 955 square yards, which is “in permissive possession of the grand children of Smt. Aktherunnisa Begum.”

16. In the application itself, it is admitted that the grand children of Smt. Aktherunnisa Begum claimed the property through the Memorandum of Gifts from Smt. Aktherunnisea Begum. These gifts alleged to have executed by Smt. Aktherunnisa Begum cannot be accepted, in view of the declaration filed by Smt. Aktherunnisa Begum before the Urban Land Ceiling Authority, City Civil Court and High Court, subsequent to the dates shown in the memorandum of gifts.

17. The applicant, in the application, stated the relationship of the parties arrayed as respondents in the L.G.C. It is admitted that Smt. Mahaboobunnisa Begum, mother of respondent No. 19 (in the L.G.C.), filed O.S. No. 117 of 1997 (Old – O.S No. 94 of 1996) pending on the file of the learned XIII Additional Chief Judge’s Court, City Civil Court, Hyderabad, against the applicant (in the L.G.C.) and others for declaration of title in respect of eastern portion of the premises bearing Municipal Nos. 8-3-323 (8-3-323/E) and 8-3-323/C/1, admeasuring 1,306 square yards, situated at Yellareddyguda, Ameerpet, Hyderabad. The Civil Court granted order of status quo, which is still subsisting. Likewise, it is also admitted that respondent No. 20 filed O.S.No. 118 of 1997 (Old – O.S. No. 111 of 1996) on the file of the same Court against the applicant (in the L.G.C.) and others, for declaration of title in respect of 600 square yards forming part of the application schedule property. The said suits were filed on the basis of the gifts, alleged to have been executed by Smt. Aktherunnisa Begum, referred to hereinabove. The order granted by the Civil Court to maintain status quo is still subsisting. The application gives the particulars of more than dozen suits pending between the parties, in which, the applicant is also arrayed as one of the defendants. Admittedly, all the suits were filed much before the applicant filing the L.G.C.’

18. It is alleged in the L.G.C. that the parties impleaded as respondents in the L.G.C. have negotiated with the 1st respondent (in the L.G.C.) (Writ Petitioner -Maheshwari Builders), for developing the schedule property or portion thereof, who in turn, by suppressing the orders subsisting obtained ‘No Objection Certificate’ in respect of ,the property bearing Municipal No. 8-3-323, in its capacity as Special General Power of Attorney Holder of the parties, from the District Collector, Hyderabad, and approached the Municipal Corporation of Hyderabad seeking permission for construction of building as well as for other amenities. The applicant (in the L.G.C.) filed W.P.No. 20647 of 2002 to quash the ‘No Objection Certificate’ and the same is pending.

19. The substantial allegation, if any, and, if at all, made in the L.G.C. by the applicant (in the L.G.C.) is that having come to know that the 1st respondent (in the L.G.C.) was trading with the application schedule property, got issued a public notice published in the Deccan Chronicle, dated 23-5-2004. “Thereafter the 1st respondent (in the L.G.C.) taking advantage of the absence of the applicant at site, forcibly took the possession of the application schedule property and got filed caveat on 29-5-2004, disputing the right, title and interest of the applicant in and over the application schedule property. The 1st respondent, on one hand and the respondents 11 and 19 on the other, separately filed caveats on 14-6-2004 disputing the title of the applicant (in the L.G.C.). It is further alleged that the 1st respondent, (in the L.G.C.) in collusion with the respondents 2 to 21 fin the L.G.C.), who have no title to the property in question created documents “to grab the land of the applicant (in the L.G.C.) and under the guise of false and fabricated documents, forcibly occupied the application schedule property and also adjoining land, for which applicant is holding agreement of sale, and accordingly grabbed the land of the applicant. Therefore, respondents 1 to 21 are the land grabbers and are liable to be declared as land grabbers.”

20. It is admitted in the L.G.C. that the 1st respondent (in the L.G.C.) is claiming right, title and interest in the application schedule property through respondents 2 to 21 under the registered development agreement and power of attorney. That the 1st respondent already obtained ‘No Objection Certificate’ as well as the permission from the Municipal Corporation of Hyderabad for construction of building.

21. It is stated that these facts constitute cause of action for fifing the L.G.C. and finally from May 2004, onwards, when the 1st respondent (in the L.G.C.) grabbed the land of the applicant (in the L.G.C.) and made arrangements to proceed with the construction by illegally occupying the application schedule property, the cause of action is continuing.

22. The writ petitioners having came to know about the initiation of the proceedings by the 1st respondent/applicant, and the matter was likely to be taken up for admission by the Special Court, appeared before the Special Court and raised objection as to the maintainability of the L.G.C.

23. The Special Court having provided an opportunity of being heard to the writ petitioners as well as the 1st respondent/ applicant and having satisfied with the prima facie evidence and the material furnished in the application, and considering the location, extent and the value of the land alleged to have been grabbed and the substantial nature of evil involved, took cognizance of the case.

24. In these writ petitions, the case set up by the petitioners is that taking cognizance of the case by the Special Court is not a formality and the Special Court has to consider whether the allegations made in the case against the respondents would fall under Section 2(d) and 2(e) of the Act.

25. The Special Court, in the instant case, according to the petitioners, took cognizance of the case in a routine and mechanical manner without application of mind.

26. Sri E. Manohar and Sri D. Prakash Reddy, learned senior counsel, appearing on behalf of the petitioners, submitted that the Special Court, before taking cognizance of the case, has to apply its mind to the facts of the case alleged in the petition and to the documents annexed thereto. The Special Court is duty bound to reject the application, if the allegations and the averments made in the application and the documents annexed to the application do not disclose and satisfy the ingredients of the “land grabbing”. It was submitted that the Special Court is not a substitute for the Civil Courts in the matter of adjudication of Inter se rights and the status of the parties. The Special Court cannot be converted into a Civil Court for resolving the disputes as regards the title and possession of any land or property. It was submitted that the Special Court is bound to undertake threshold scrutiny and record reasons for taking cognizance of the case.

27. It was submitted that even if, all the allegations made in the concise statement are taken to be true and read along with the documents annexed to the application, no case of “land grabbing” is made out.

28. The particulars of the suits given in the L.G.C. relate to the relationship of the vendor of the 1st respondent/applicant to the title holder; that in some of the suits the agreement of sale as well as the sale deed executed in favour of the 1st respondent/ applicant are under challenge and the Civil Court has granted status quo with regard to possession which continues to subsist even as on the day. The allegations and the averments made in the application, at the most, disclose the dispute with regard to title and possession of the property but not any activity of “land grabbing”. That a vague statement that the land was grabbed by the respondents (in the L.G.C.) would not be enough to take cognizance of the case under the provisions of the Act. Both the learned senior counsel relied upon the decision rendered by this Court in Shalivahana Builders Pvt. Ltd. and Anr. v. Sri Ganapathy Co-operative Housing Society and Ors., (D.B.).

29. Sri Challa Sitaramaiah, learned senior counsel, appearing on behalf of the 1st respondent/applicant, submitted that the persons impleaded as respondents in the L.G.C. have no right of audience even before the Special Court takes cognizance of the case; objections, if any, raised by the writ petitioners in their counter affidavit filed in the L.G.C., need not be noticed by the Special Court. It was submitted that there cannot be any pre-trial enquiry or a mini-trial, even in the criminal complaints, and in such view of the matter, a detailed examination of the allegations made in the application and the documents filed along with the application by the Special Court, even at the threshold stage, is not contemplated under the provisions of the Act. The respondents have no say, at the stage, even before the Special Court takes cognizance of the case. The requirement in law is the Special Court should examine the petitioner in respect of the value, extent, location of the land alleged to have been grabbed, substantial nature of the evil or in the interest of justice, for the purposes of determining whether it is a fit case for the Special Court to try or a case required to be sent to the Tribunal. The sum and substance of the submission was that there is no other condition precedent prescribed under the Act for taking cognizance of the case by the Special Court. The learned senior counsel made an extreme submission that the Special Court is required to take cognizance of every case where an allegation of “land grabbing” is made and try the same. There is no option or other discretion left to the Special Court but to take cognizance and try the case whenever an allegation of land grabbing is made. Reliance was placed on the decision of a Division Bench of this Court in Chenna Basvanna v. Special Court under A.P. Land Grabbing (Prohibition) Act, Hyderabad and Ors., (D.B.)

30. It was suggested, as if, there is a conflict between the decisions rendered in Shalivahana Builders’ case (1 supra) and Chenna Basvanna’s case, Having regard to the submissions made, the Division Bench, before which the matter was initially listed for hearing, referred the matter for consideration by a Full Bench.

31. The decision rendered by the Division Bench in Chenna Basvanna’s case (2 supra) was not placed for perusal of the Court, which heard Shalivahana Builders’ case (1 supra). In such view of the matter, the Division Bench referred the matter for consideration by a Full Bench even though there is no apparent conflict, as such, between the decisions in Chenna Basvanna’s case (2 supra) and Shalivahana Builders’ case (1 supra). The Division Bench in its reference order observed:

“………In our considered opinion, there is no apparent conflict as such between the decisions rendered in Chenna Basvanna (2 supra) and Shalivahana Builders (1 supra) by a separate Division Bench. But it may be necessary to reconcile both the Judgments for the purpose of an authoritative pronouncement………”

That is how these matters are listed before this Full Bench.

32. That on consideration of the facts as alleged in the L.G.C. and upon an analysis of the submissions made by the learned senior counsel appearing on behalf of the parties, in our considered opinion, the following questions arise for our consideration:-

(1) What is the meaning of concept and expression of ‘cognizance’; ‘taking cognizance’ and when does the Special Court takes the ‘cognizance of the case’?

(2) Does the statute enjoin the Special Court and the Special Tribunal to take cognizance of every case and try all cases brought before it except the one which it rejects as frivolous and vexatious?

(3) Whether the Special Court is required to follow the procedure under Rules 6 and 7 of the Andhra Pradesh Land Grabbing (Prohibition) Rules 1988, before taking cognizance of a case/

(4) Whether the Special Court is under obligation and bound to hear the respondents even before taking cognizance of the case?

(5) Whether the respondents in a land grabbing case are entitled to oppose the admission of the case, and, if so, on what grounds?

33. In order to consider each of the questions that arise for consideration, it is just and necessary to have a brief survey of the relevant provisions of the Act and the Statement of Objects and Reasons.

34. The Act intends to prohibit the activity of the land grabbing in the State of Andhra Pradesh and to provide for the matters connected therewith.

35. In the Statement of Objections and Reasons of the Act, it is stated that the Government noticed instances of organised attempts on the part of certain lawless persons operating individually and in groups to grab either by force, or by deceit or otherwise lands belonging to the Government, a local authority, a religious or charitable institution or endowment, including wakf or any other private person. The land grabbers are forming bogus cooperative housing societies or setting up fictitious claims and including in large scale and unprecedented and fraudulent sales of land through unscrupulous real estate dealers or otherwise in favour of certain section of people, resulting in large scale accumulation of the unaccounted wealth. As public order is also adversely affected thereby now and then by such unlawful activities of land grabbers in the State, particularly in respect of urban and urbanisable, lands, it was felt necessary to arrest and curb such unlawful activities immediately by enacting a special law in that regard.

36. The Act underwent radical transformation and many of the provisions were amended and substituted by the Act 16 of 1987. Section 17-B of the Act has been inserted by the A.P. Act 16 of 1987, which says that the schedule added by the Act 16 of 1987 constitute the guidelines for interpretation and implementation of the Act. The Schedule consists of Statement of Objects and Reasons in the Andhra Pradesh Land Grabbing (Prohibition) Bill 1982, and the Statement of Objects and Reasons to the Amendment Bill, 1987.

37. It is very well settled and needs no restatement at our hands that the Objects and Reasons can be referred for interpreting the provisions of the Act. That so far as the present Act is concerned, Section 17-B, itself, states that the Schedule shall constitute the guidelines for interpretation and implementation of the Act.

38. The task of interpreting the laws by finding out what the Legislature meant is allotted to the Courts, that every often difficulties arise at interpreting what the Legislature has said even after the Legislature has expressed itself by making the laws. “The Legislature, unlike individuals, cannot come forward to explain themselves as often as difficulties of interpretation arise.”

39. The Supreme Court in Girdhari Lal and Sons v. Balbir Nath Mathur and Ors., observed:

“………Parliamentary intention may be gathered from several sources. First, of course, it must be gathered from the statute itself, next from the preamble to the statute, next from the Statement of Objects and Reasons, thereafter from Parliamentary debates, reports of committees and commissions which preceded the legislation and finally from all legitimate and admissible sources from where there may be light. Regard must be had to legislative history too.

Once Parliamentary intention is ascertained and the object and purpose of the legislation is known, it then becomes the duty of the court to give the statute a purposeful or a functional interpretation……..”

40. Francis Bennion in Statutory Interpretation while adverting to the importance of the Schedules observed, “the Schedule is an extension of the section which induces it. Material is put into a Schedule because it is too lengthy or detailed to be conveniently accommodated in a section, or because it forms a separate document.” It is often found convenient to incorporate part of the operative provisions of an Act in the form of a Schedule.

41. It is considered to be a modern technique where most of the working and detailed provisions are placed in lengthy schedules. Whether the material is put in Section or a Schedule is usually a mere matter of convenience. The Schedule inserted by way of amendment into the Act, which contains the Statement of Objects and Reasons provide valuable guidance for interpretation of the provisions of the Act.

42. We shall bear this principle in mind and proceed to examine the relevant provisions of the Act.

43. The expression “land grabber” is defined in Section 2(d) of the Act which “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 unauthorised 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.”

44. Section 2(e) of the Act defines “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 licences agreements or any other illegal agreements in respect of such lands, or to construct unauthorised 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 unauthorised structures.”

45. Section 3 of the Act declares the land grabbing to be an offence punishable under the Act; Section 4 of the Act prohibits land grabbing; Section 5 of the Act prescribes the penalty for other offences in connection with land grabbing; Section 6 of the Act deals with the offences by the Companies; and Section 7 of the Act provides for Constitution of Special Courts.

46. Sub-section (5D)(i) of Section 7 of the Act enables the Special Court to follow its own procedure, which shall not be inconsistent with the principles of natural justice and fair play and subject to the other provisions of the Act and of any rules made thereunder while deciding the Civil liability. It further provides that notwithstanding anything contained in the Code of Civil Procedure, 1908 (V of 1908) every offence punishable under the Act shall be tried in a summary way and the relevant provisions of the said Code shall, as far as may be, apply to such trial.

47. Section 8 of the Act, which is relevant for our present purposes, reads as follows:

“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;

[x x x x]

(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, any case in respect of an alleged act of land grabbing or the determination or question of title and ownership to, or lawful possession of any land grabbed under this Act, shall be triable only in a Special Court constituted for the area in which the land grabbed is situated; and the decision of the 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 withdrawn 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 proceedings:

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) [x x x x]

(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) [x x x x]

(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:

Provided further that where the custodian of evacuee property 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 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,

(7) It shall be lawful for the Special Court to pass such order as it may deem fit to advance the cause of justice. It may award compensation in terms of money for wrongful possession of the land grabbed 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 re-delivery of the grabbed land to its rightful owner. The amount of compensation and profits, so awarded and costs of re-delivery, if any, shall be recovered as an arrear of land revenue in case the Government is the owner, or as a decree of a Civil Court, in any other case to be executed by the Special Court:

Provided that the Special Court shall, before passing an order under this sub-section, give to the land grabber an opportunity of making his representation or of adducing evidence, if any, in this regard, and consider every such representation and evidence.

(8) Any case, pending before any Court or other authority immediately before the Constitution of a Special Court, as would have been within the jurisdiction of such Special Court, shall stand transferred to the Special Court as if the cause of action on which such suit or proceeding is based and arisen after the constitution of the Special Court.”

48. Section 9 of the Act invests the powers of the Civil Courts as well as the Court of Session in the Special Court and makes the provisions of the Code of Civil Procedure as well as the Code of Criminal Procedure applicable to the proceedings before the Special Court save as expressly provided under the Act.

49. Section 10 of the Act deals with the burden of proof; and Section 12 of the Act deals with sanction for prosecution of the offence under the Act.

50. That a plain reading of Section 8 of the Act which is the crucial provision which deals with the procedure and the powers of the Special Courts makes it clear that the Special Court may either issue suo motu or on application take cognizance of and try every case arising out of any alleged act of land grabbing. The Special Court is also conferred with the power to try with respect to the ownership and title to, or lawful possession of, the land grabbed. It is not entitled to try every case involving disputes as to the ownership and title to any land but is entitled to go into the question of ownership and title to, of lawful possession of, the land grabbed. The Special Court is conferred with the exclusive jurisdiction to try every case arising out of any alleged act of land grabbed. The jurisdiction of the ordinary Civil Courts to that extent is taken away by the Special Court. That for the purpose of taking cognizance of the case, the Special Court is required to 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, for which purposes the Special Court is required to hear the petitioner. If the Special Court is of the opinion that if 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. The Special Court is duty bound to reject any application filed before it, if in its opinion, such application, prima facie, is frivolous or vexatious one. It is invested with exclusive jurisdiction to try all offences punishable under the Act.

Question 1:

What is the meaning of concept and expression of ‘cognizance’; ‘taking cognizance’ and when does the Special Court takes the ‘cognizance of the case’?

51. It is not disputed before us that taking cognizance of a case under the provisions of the Act is not a formality, the Special Court is bound to reject any application filed before it, if in its opinion; such application, prima facie, is frivolous or vexatious one. It is bound to reject the same without making any further enquiry.

52. The expression ‘cognizance’ is used not only in the Code of Civil Procedure 1908, and the Code of Criminal Procedure 1973, but also in many enactments, such as, Essential Commodities Act, 1955 and the Prevention of Corruption Act, etc.

53. ‘Cognizance’ means judicial notice or knowledge; the judicial recognition or hearing of a cause; jurisdiction, or right to try and determine causes. It is a word of the largest import: embracing all power, authority and jurisdiction. Taking cognizance does not involve any formal action, or indeed action of any kind, but occurs as soon as a Magistrate, as such, applies his mind of the suspected commission of an offence; to take cognizance implies a conscious volition on the part of the Magistrate (See: The Law Lexicon. P. Ramanatha Aiyar).

54. In the Words and Phrases, it is explained; the word ‘cognizance’ in law means the exercise of jurisdiction, the taking of authoritative notice as of a cause. In ordinary parlance, to have cognizance of means to have knowledge of. But the legal meaning of the word ‘cognizance’ is broader than its ordinary meaning. It not only implies knowledge of the subject-matter, but power to deal with it.

55. In Ajit Kumar Palit v. The State of West Bengal and Anr., 1964 (1) SCJ 575. the Supreme Court, considering the question as to whether it is the requirement of any principle of general jurisprudence that there should be some additional material to entitle the Court to take cognizance of the offence in case Section 190(1) of the Code of Criminal Procedure, on its own terms, inapplicable, observed:

“The word “cognizance” has no esoteric or mystic significance in criminal law or procedure. It merely means, become aware of and when used with reference to a Court or Judge, to take notice of judicially. It was stated in Gopal Marwari v. Emperor (AIR 1943 Patna 245), by the learned Judges of the Patna High Court in a passage quoted with approval by this Court in R.R. Chart v. State of Uttar Pradesh ((1951) SCJ 302: (1951) 1 MLJ 617: (1951) SCR 312, at p.320), that the word “cognizance” was used in the Code to indicate the point when the Magistrate or Judge takes judicial notice of an offence and that it was a word of indefinite import, and is not perhaps always used in exactly the same sense. As observed in Emperor v. Sourindra Mohan Chuckorbutty (ILR 37 Cal. 412, at p.416), “taking cognizance does not involve any formal action; or indeed action of any kind, but occurs as soon as a Magistrate, as such, applies his mind to the suspected commission of an offence.” Where the statute prescribes the materials on which alone the judicial mind shall operate before any step is taken, obviously the statutory requirement must be fulfilled, thus, a Sessions Judge cannot exercise that original jurisdiction which Magistrates specified in Section 190(1) can, but the material on which alone he can apply his judicial mind and proceed under the Code is an order of commitment. But statutory provision apart, there is no set material which must exist before the judicial mind can operate. It appears to us therefore that as soon as a Special Judge receive the orders of allotment of the case passed by the State Government it becomes vested with jurisdiction to try the case and when it receives the record from the Government it can apply its mind and issue notice to the accused and thus start the trial of the proceedings assigned to it by the State Government.

56. In RR Chart v. State of Uttar Pradesh, (1951) SCR 312 the Supreme Court approvingly referred to the observations made in Superintendent and Remembrancer of Legal Affairs, West Bengal v. Abani Kumar Banerjee , wherein it was stated that “what is taking cognizance has not been defined in the Criminal Procedure Code and I have no desire to attempt to define. It seems to me clear however that before it can be said that any magistrate has taken cognizance of any offence under Section 190(1) (a), Criminal Procedure Code, he must not only have applied his mind to the contents of the petition but he must have done so for the purpose of proceeding in a particular way as indicated in the subsequent provisions of this

57. In D.L. Reddy v. V. Narayana Reddy, the Supreme Court observed, “when a magistrate receives a complaint, he is not bound to take cognizance if the facts alleged in the complaint, disclose the commission of an offence……….. “If on a reading of the complaint he finds that the allegations therein disclose a cognizable offence and the forwarding of the complaint to the police for investigation under Section 156(3) will be conducive to justice and save the valuable time of the magistrate from being wasted in enquiring into a matter which was primarily the duty of the police to investigate, he will be justified in adopting that course as an alternative to taking cognizance of the offence, himself.”

58. What is meant by “taking cognizance of an offence” by a Magistrate within the contemplation of Section 190 of the Code of Criminal Procedure? The Supreme Court observed, “this expression has not been defined in the Code. But from the scheme of the Code, the content and marginal heading of Section 190 and the caption of Chapter XIV under which Sections 190 to 199 occur, it is clear that a case can be said to be instituted in a court only when the court takes cognizance of the offence alleged therein. That in the judicial exercise of his discretion, the Magistrate may instead of proceeding under Chapter XV, take action of some other kind, such as issuing a warrant for the purpose of investigation, or ordering investigation by the police under Section 156(3), he cannot be said to have taken cognizance of any offence.”

59. That a fair analysis of the decisions, referred to hereinabove, leads us to an irresistible conclusion that taking cognizance of a case by a Court of competent jurisdiction is different from mere initiation of the proceedings. It is clear that a case can be instituted in a Court only when the Court takes cognizance of the offence or cause, as the case may be, alleged therein. Mere numbering of the application or registration of a case does not amount to taking cognizance of the case. Registering the case and assigning number to it is a ministerial act, which cannot be equated to that of taking cognizance by a Court of competent jurisdiction, which requires intense application of mind to the facts. That taking cognizance of a case be it civil or criminal is not a matter of course.

Question 2:

Does the Statute enjoin the Special Court and the Special Tribunal to take cognizance of every case and try all cases brought before it except the one which it rejects as frivolous and vexatious?

60. We have already noted that Section 8 of the Act deals with the procedure and the powers of the Special Court. It provides that the Special Court may either suo motu or on application filed by any person or authority may take cognizance of and try every case arising out of any alleged act of land grabbing. The Special Court exercises both criminal and civil jurisdiction.

61. A larger Bench of this Court in the decision in Hindustan Aeronautics Employees Co-operative Housing Society v. The Special Court, (L.B.). held that the provisions of the Act should receive strict construction.

62. In Shalivahana Builders’ case (1 supra) this Court took the view that taking cognizance of a case under the provisions of the Act is not a formality. The Special Court is required to make a detailed threshold scrutiny even before taking cognizance of a case under the provisions of the Act; it is bound to reject any application filed before it, if in its opinion, such application, prima facie, is frivolous or vexatious one.

63. Chenna Basvanna’s case (2 supra), upon which reliance has been placed by the learned senior Counsel appearing on behalf of the respondent/applicant, in support of his submission that the Special Court is bound to take cognizance of every case arising out of any alleged act of land grabbing, in our considered opinion, does not say that the Special Court is bound to take cognizance of every application and try every case on the mere allegation of land grabbing even if the allegations made in the case do not attract the ingredients under Sections 2(d) and 2(e) of the Act. In Chenna Basvanna’s case (2 supra) it is observed;

“……..The word “every” occurring in sub-section (1) is very significant. According to Black’s Law Dictionary, the word “every” means “each one of all, all the separate individuals who constitute the whole, regarded one by one”. It also means “all and each”. Thus, the word “every” is often synonymous with either “all and each. Its generality may be restricted by the context in which that word occurs in a Statute. The word “every” indicates that it has been used in Sub-section (1) of Section 8 in wider sense extending from one to all. The word “every” excludes limitation or qualification. The word “every” is expressive and it indicates in the context “all or every”, “in the given category”; it has no reference to any particular or definite individual case, but to a positive but undetermined number in that category without restriction or limitation of choice, Therefore, in terms of provisions of Sub-section (1) of Section 8 of the Act, the Special Court is required to take cognizance of each and every case arising out of any alleged act of land grabbing or with respect to the ownership and the title, or lawful possession of, the land grabbed, whether before or after the commencement of this Act. Therefore, if Sub-section (1 -A) were not to be there in Section 8, such an interpretation could have been placed, but having regard to the provisions of Sub-section (1-A) and the legislative intendment flowing from that provision, it is obvious that, as already stated supra, in appropriate cases, the Special Court may refuse to take cognizance on considerations of the location or extent or value of the land in question and other factors set out in Sub-section (1-A)”.

64. The judgments have to be read in the context and not as statutes or Euclidean theorems.

65. The only contention urged in Chenna Basvanna’s case (2 supra), was that the Special Court ought not to have taken the cognizance of the application filed under Section 8(1) of the Act, in view of the fact that the land involved in the matter was only 65 square yards and the value of which is shown as Rs. 39,000/-. The contention was that the Special Court did not exercise its discretion properly under Section 8(1) of the Act in assuming the jurisdiction. The whole contention was that the Special Court ought not to have taken cognizance of and assumed jurisdiction, having regard to the involvement of insignificant extent of land and its value. That contention was rejected holding that the discretion to be exercised under Sub-section (1-A) is left to the good faith of the Special Court and it would not be possible for this Court to define standards either to take cognizance or not to take cognizance. In our considered opinion, Chenna Basvanna’s case (2 supra) is not an authority for the proposition that the Special Court is bound to take cognizance of every case whenever an allegation of land grabbing is made, even if, the averments and the allegations made in the application do not attract the provisions of the Act.

66. It is fairly well settled that before a Court of competent jurisdiction takes cognizance of a case”, it has to apply its mind to the facts of the case alleged in the petition and the documents annexed thereto. That all the allegations made in the application, even if, to be taken true, do not disclose and satisfy the basic ingredients of any offence, so far as criminal cases are concerned and the cause of action in civil cases, the Court is bound to reject the case.

67. In Mrs. Dhanalakshmi v. R. Prasanna Kumar and Ors., 1990 (1) Crimes 26 (SC) upon which reliance has been placed by the learned senior counsel appearing for the respondents, the Supreme Court observed that in proceedings instituted on complaint exercise of the inherent power to quash the proceedings “is called for only in cases where the complaint does not disclose any offence or is frivolous, vexatious or oppressive. If the allegations set out in the complaint do not constitute the offence of which cognizance is taken by the Magistrate it is open to the High Court to quash the same in exercise of the inherent powers under Section 482. It is not, however, necessary that there should be a meticulous analysis of the case, before the trial to find out whether the case would end in conviction or not. The complaint has to be read as a whole. If it appears on a consideration of the allegations, in the light of the statement on oath of the complainant that ingredients of the offence/offences are disclosed, and there is no material to show that the complaint is mala fide, frivolous or vexatious, in that event there would be no justification for interference by the High Court.” We fail to appreciate as to how the judgment supports the point canvassed before us by the learned senior counsel appearing for the respondents.

68. There cannot be any dispute whatsoever that only the allegations made in the complaint or the plaint or the application, as the case may be, may have to be taken into consideration for the purpose of deciding as to the fitness of the case for taking cognizance or assuming jurisdiction by the Special Court. The question of jurisdiction is determined at the commencement, not at the conclusion of the enquiry. The test is characterised as “the start of proceedings test.” The following passage, in Jurisdiction and Illegality, by Amnon Rubinstein, is instructive.

“The question of jurisdiction, it has been said, is determinable ‘at the commencement, not at the conclusion, of the inquiry’. The court which examines the jurisdiction of another inferior tribunal must confine itself to asking whether, at that preliminary stage of the proceedings, want of jurisdiction could have been established. Facts which cropped up at a later stage, even though established by evidence, must be ignored. If, on the other hand, it is decided that, from the information available at the start of the proceedings, the tribunal clearly had no jurisdiction, that is sufficient.”

69. In Vijai Pratap Singh v. Dukh Haran Nath Singh, the Supreme Court, while considering the nature and scope of Order XXXIII, Rule 5, Clause (d) of the Code of Civil Procedure 1908, observed that the Court is concerned to ascertain whether the allegations made in the petition show a cause of action. It is further observed:

“The court has not to see whether the claim made by the petitioner is likely to succeed; it has merely to satisfy itself that the allegations made in the petition, if accepted as true, would entitle the petitioner to the relief he claims. If accepting those allegations as true no case is made out for granting relief no cause of action would be shown & the petition must be rejected. But in ascertaining whether the petition shows a cause of action the court does not enter upon a trial of the issues affecting the merits of the claim made by the petitioner. It cannot take into consideration the defences which the defendant may raise upon the merits; nor is the court competent to make an elaborate enquiry into doubtful or complicated questions of law or fact. If the allegations in the petition, prima facie, show a cause of action, the court cannot embark upon an enquiry whether the allegations are true in fact, or whether the petitioner will succeed in the claims made by him. By the statute, the jurisdiction of the court is restricted to ascertaining whether on the allegations a cause of action is shown: the jurisdiction does not extend to trial of issues which must fairly be left for decision at the hearing of the suit”.

70. In Halsbury’s Laws of England, the law with regard to striking out pleadings and actions, it is observed:

“……..The court is invested with extensive powers to strike, out pleadings and thereupon, or for other good reason arising from the making of the claim or defence, to dismiss actions by plaintiffs or to enter judgments against defendants. These powers are both salutary and necessary not only to enforce the basic rules of pleadings but also to dispose of proceedings which are hopeless, baseless or without foundation in law or in equity or are otherwise an abuse of the process of the court. The powers are exercised by the court by summary process, speedily and generally at an early stage of the proceedings, and they operate as a powerful, effective method of disposing of proceedings, without a plenary trial………”

It is further explained that,–

“….where a pleading discloses no reasonable cause of action or defence, it will be ordered to be struck out or amended, if it is capable of amendment ………….but no evidence, including affidavit evidence, is admissible on an application on this ground, and, “since it is only the pleading itself which is being examined, the Court is required to assume that the facts pleaded are true and undisputed.

71. While explaining the Court’s power to strikeout pleadings, which are an abuse of process, it is observed:

“An abuse of the process of the Court arises where its process is used, not in good faith and for proper purposes, but as a means of vexation or oppression or for ulterior purposes, or, more simply, where the process is misused.”

72. The Special Court is required to carefully scrutinize the allegations made in the application, in order to satisfy itself that the allegations made in the application reveal and attract the ingredients of land grabbing. Mere statement or assertion that the respondents have grabbed the land is not enough.

73. The submission that the Special Court cannot reject any application even at the threshold, but take congnizance and proceed with the enquiry, since there is no provision in the Act to reject the application at the threshold is devoid of any merit. That there need not be any specific provision in the statute suggesting or guiding as to how the Court is required to exercise its jurisdiction for the provisions of the Code of Civil Procedure is made applicable to the proceedings under the Act and under the provisions of the Code of Civil Procedure, no Court can take cognizance of a case, unless the material facts pleaded disclose a cause of action.

74. We accordingly hold that there is no conflict between the decisions rendered by this Court in Shalivahan Builders’ case (1 supra) and Chenna Basvanna’s case (2 supra).

75. In Azhar Hussain v. Rajiv Gandhi, it was urged that an election petition could not be dismissed by reason of want of material facts because Section 86 of the Representation of the People Act (43 of 1951) (for short “the R.P. Act”) conferred power on the High Court to dismiss the election petition, which did not comply with the provisions of Section 81, or Section 82 or Section 117 of the R.P. Act only, and hot on any other ground. It was emphasized that Section 83 of the R.P. Act did not find place in Section 86 of the R.P. Act. Rejecting the contention, the Supreme Court held that an election petition can be and must be dismissed under the provisions of the Code of Civil Procedure, if the mandatory requirements enjoined by Section 83 of the R.P. Act to incorporate the material facts and the particulars relating to alleged corrupt practice in the election petition are not complied with.

76. The fact that Section 83 of the R.P. Act did not find place in Section 86 of the R.P. Act does not mean that the powers under the Code of Civil Procedure cannot be exercised. Further, the Supreme Court rejected the contention that the power to reject an election petition summarily under the provisions of the Code of Civil Procedure should not be exercised at the threshold. The Court must proceed with the trial, record the evidence, and only after the trial of the election petition is concluded that the powers under the Code of Civil Procedure for dealing appropriately with the defective petition which does not disclose cause of action should be exercised. It is further observed:

“……..The whole purpose of conferment of such powers is to ensure that a litigation which is meaningless and bound to prove abortive should not be permitted to occupy the time of the court and exercise the mind of the respondent. The sword of Damocles need not be kept handing over his head unnecessarily without point or purpose. Even in an ordinary Civil litigation the Court readily exercises the power to reject a plaint if it does not disclose any cause of action………”

77. It is not in dispute that Section 9 of the Act makes the provisions of the Code of Civil Procedure, 1908 the A.P. Civil Courts Act, 1972 and the Code of Criminal Procedure, 1973, applicable to the proceedings before the Special Court and for the purposes of the provisions of the said enactments, the Special Court shall be deemed to be a Civil Court, or, as the case may be, a Court of Session, and shall have all the powers of the Civil and Court of Session. It is clear, the Special Court is entitled to exercise the power under Order VII, Rule 11 of the Code of Civil Procedure, and reject the application, if the allegations made therein do not disclose cause of action and the case is frivolous and vexatious one.

78. That an application, filed under Section 8 of the Act, which does not disclose cause of action would be a frivolous petition and liable to be rejected without any further enquiry.

Question 3:

79. The next question which is integrally intertwined with the second question is as to whether the Special Court is required to follow the procedure under Rules 6 & 7 of the Andhra Pradesh Land Grabbing (Prohibition) Rules 1988 (for short ‘the Rules’), before taking cognizance of a case?

80. In Shalivahana Builders’ case (1 supra), this Court took the view that “every application shall have to be scrutinised in order to decide as to whether the same is frivolous or vexatious one. “Unless the Court comes to the conclusion that it is a fit case to be taken cognizance of, it cannot proceed further in the matter. In order to decide as to whether the application filed prima facie is frivolous or vexatious and in order to enable the Special Court to form its opinion the Court may look into the report of the Mandal Revenue Officer having jurisdiction over the area since such report essentially contains the details of the correctness of the statements made in the application and the facts relating to ownership, actual possession and user of the land concerned, etc. It is in this background the verification of application and submission of the report by the Mandal Revenue Officer or the authorized officer, as the case may be, are to be considered as mandatory requirements. In the absence of such report the Court may not be in a position to form its opinion in order to decide as to whether the application filed is a fit case to be taken cognizance of. The objections preferred by the interested persons of any pursuant to notice issued in accordance with the Rule 7 may also have to be taken into consideration for the purposes of forming the opinion by the Special Court that it is a fit case to be taken cognizance of.”

81. Rule 6 of the Rules provides that every application filed under Sub-section (1) of Section 8 of the Act or every case taken cognizance of suo motu by the special Court may be referred by local inspection or verification or both by the Mandal Revenue Officer having jurisdiction over the area or by any other Officer of the Government authorised by the Court in that behalf. The Mandal Revenue Officer to whom the application has been referred shall make or cause to be made an inspection or verification or both, as soon as maybe practicable and shall submit 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 the application with regard to columns 1 to 15 and 19 in Form-1;

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

(iii) such other particulars and information as would be useful to the Court to arrive at a correct decision on the claims made in the application.

82. The Mandal Revenue Officer to whom the application has been referred shall also furnish copies of the extracts of the Government records to show the survey number and sub-division number and proof of possession, ownership and us of the land and the payment of dues to the Government. A copy of the report may be furnished to the applicant, to the respondents and other persons, if any having interest in the land on payment of copying charges.

83. This Rule is required to be read along with Section 8 and Section 7-A of the Act, which deal with procedure and powers of the Special Courts to take cognizance of and try every case arising out of any alleged act of land grabbing.

84. That a plain reading of Rule 6 of the Rules does not suggest that application filed under Sub-section (1) of Section 8 of the Act or under Sub-section (1) of Section 7-A of the Act may have to be referred for local inspection or verification or both by the Mandal Revenue Officer only after the Special Court or the Special Tribunal, as the case may be, takes cognizance of the case. On the other hand, it suggests that every case taken cognizance of, suo motu by the Special Court may be referred for local inspection or verification or both by the Mandal Revenue Officer. It means that Rule 6 of the Rules makes distinction between the applications filed under Sub-section (1) of Section 8 of the Act and the cases taken cognizance of suo motu by the Special Court.

85. In all cases, wherever, the Special Court takes cognizance of a case suo motu, local inspection or verification shall be after taking such suo motu cognizance by the Special Court, as is evident from a plain reading of Rule 6 of the Rules, which says every application filed under Sub-section (1) of Section 8 of the Act or every case taken cognizance of suo motu by the Special Court, and in all other cases, where application filed under Sub-section (1) of Section 8 of the Act, the same required to be referred for local inspection or verification or both by the Mandal Revenue Officer even before taking cognizance of the case. The portion of the Rule 6 of the Rules, “or every case taken cognizance of suo motu by the Special Court”, if not be read, the Rule 6 of the Rules would read: “every application file under Sub-section (1) of Section 8 of the Act or on application filed under Sub-section (1) of Section 7-A of the Act, before the Special Tribunal, may be referred for local inspection or verification or both by the Mandal Revenue Officer having jurisdiction over the area or by any other Officer of the Government authorised by the Court in this behalf.”

86. The report submitted by the Mandal Revenue Officer, obviously, renders valuable assistance to the Special Court in order to decide as to whether the application filed is a fit case to be taken cognizance of. In our considered opinion, reference of every application under Sub-section (1) of Section 8 of the Act or on application filed under Sub-section (1) of Section 7-A of the Act, for local inspection or verification or both by the Mandal Revenue Officer before the Special Court or the Special Tribunal takes cognizance of the case is a mandatory requirement.

87. However, in Shalivahana Builders’ case (1 supra), this Court without noticing the amendments to Rule 7 of the Rules observed that the objections preferred by the interested persons, if any, pursuant to the notice issued in accordance with Rule 7 of the Rules may also be taken into consideration for the purposes of forming opinion by the Special Court that it is a fit case to be taken cognizance of. That portion of the judgment is obviously based on interpretation of un-amended Rule, which provided for issuance of a notice in Form II-A before taking cognizance of the case. The amended rule obviously has not been brought to the notice of the Court, which says, “the Special Court shall after taking cognizance of the case under the Act gives notice in Form II-A by publishing it in the Andhra Pradesh Gazette.”

88. The notice under Form II-A and II-B in accordance with the amended Rules is required to be issued only after taking cognizance of the case under the Act and not before taking cognizance of the case. Therefore, the question of considering the objections preferred by the interested persons pursuant to the notice issued in accordance with Rule 7 of the Rules for the purpose of deciding as to whether a case is a fit one to be taken cognizance of does not arise. That portion of the judgment rendered in ignorance of the amended Rule 7 of the Rules is per in curiam.

89. In the result, we hold that the Special Court is required to follow the procedure under Rule 6 of the Rules before taking cognizance of a case. It is unnecessary to restate that registering or numbering of an application filed under Sub-section (1) of Section 8 of the Act or an application filed under Sub-section (1) of Section 7-A of the Act cannot be equated to that of taking cognizance of a case for the purpose of passing such orders as the Special Court may deem fit and proper in the case.

90. The report to be submitted by the Mandal Revenue Officer is required to contain the correctness of the statements made in the applications with regard to columns 1 to 15 and 19. Columns 6 to 14 relate to the details of the land alleged to have been grabbed, the market value of the land and its location etc. That in terms of Sub-section (1) of Section 7-A of the Act and Sub-section (1) of Section 8 of the Act, those are the essential aspects, required to be taken into consideration by the Special Court for the purpose of taking cognizance of a case. The report cannot be equated to that of any evidence or collection of material. Therefore, taking into consideration the verification report submitted by the Mandal Revenue Officer would not amount to relying upon any evidence produced by the parties even before taking cognizance of the case. The verification report may render valuable assistance to the Court for the purposes of taking cognizance of a case. The report merely provides inputs enabling the Special Court to apply its mind to the fact situation for the purposes of taking cognizance of the case.

Questions 4 and 5:

(4) Whether the Special Court is under obligation and bound to hear the respondents even before taking cognizance of the case?

(5) Whether the respondents in a land grabbing case are entitled to oppose the admission of the case, and, if so, on what grounds?

91. However, it may be made clear that the persons impleaded as respondents in the L.G.C. are not entitled to file any counter and produce the documents opposing the application, even before the Special Court takes cognizance and assumes jurisdiction to proceed with the enquiry. The averments made in the counter, if any, filed at that stage, and the documents produced, by the respondents cannot be taken into consideration by the Special Court for the purposes of deciding as to whether the application is a fit one for taking cognizance by the Special Court.

92. All that the Special Court required is to take into consideration, the contents and the allegations made in the application and the summary of the concise statement and the documents annexed to the application and verification report of the Mandal Revenue Officer, but there is nothing in the Act which prevents the Special Court from hearing the respondents appearing before it voluntarily even before the application is taken cognizance of, but such hearing can only be with reference to the contents of the application and the summary of evidence and the documents annexed to the application filed by the applicant. The Special Court is not required to issue any notice and provide any opportunity of hearing to the respondents even before taking cognizance of the case, but the respondents are not precluded to oppose the admission of the case with reference to the contents of the application and the summary of evidence and the documents filed by the applicant.

93. It is true, as held by the Supreme Court in State of Orissa v. Debendra Nath Padhi, there cannot be any pre-trial or a mini-trial even at the state of framing of charges for which purposes the material produced by the prosecution alone is to be considered and not the one produced by the accused. The question that has fallen for consideration was, “Can the trial Court at the time of framing of charge consider the material filed by the accused?” It is held that no provision in the Code grants to the accused any right to file any material or documents at the time of framing of charges. That right is granted only at the stage of the trial. There can only be limited evaluation of materials and documents on record and sifting of evidence to prima facie find out whether sufficient ground exists or not for the purpose of proceeding further with the trial with reference to materials and the documents produced by the prosecution and not the accused. The Supreme Court while considering “hearing the submission of the accused” employed in Section 227 of the Code of Criminal Procedure, held, “it only means hearing the submission of the accused on the record of the case as filed by the prosecution and documents submitted therewith and nothing more”. It cannot mean opportunity to file material to be granted to the accused. At the stage of framing of charge, hearing the submissions of the accused has to be confined to the material produced by the police.

94. In the instant case, the writ petitioners have filed not only their counters but also filed certain documents in support of their contention that the application filed by the 1st respondent/applicant is not a fit case for taking cognizance of by the Special Court. The Special Court rightly did not take the documents filed by the writ petitioners herein. The Special Court is not under any obligation to provide an opportunity to produce documents by the persons impleaded as respondents in the L.G.C. even at the threshold stage. The respondents, on their own appearance, however, can always be permitted to raise objections as to the maintainability of the L.G.C. with reference to the material available on record made available by the applicant. The objection as to the maintainability and jurisdiction of the Special Court to entertain the application or its act of taking cognizance of the case can be raised by the respondents in the L.G.C. at any time, either at the threshold stage or even after taking cognizance of the case by the Special Court.

Whether the Special Court committed any error which is apparent on the face of the record in taking cognizance of the L.G.C. filed by the 1st respondent/ applicant?

95. It is unnecessary to recapitulate the facts in detail once again which we have already noticed in the preceding paragraphs for the purposes of determining the question as to whether the Special Court committed any error in taking cognizance of the case, but a brief summation may be necessary.

96. The 1st respondent/applicant is the purchaser under the registered sale deed, dated 11-8-1995, preceded by an agreement of sale, dated 22-6-1995. That altogether 34 individuals are impleaded as respondents in the L.G.C. The vendors of the applicant are arrayed as respondents 22 to 34. Respondents 2 to 21 are the rival claimants to the title. The property in question, which forms part of larger extent of land was originally purchased by the Late Nawab Mohd. Farooq Ali Khan under a registered sale deed in 1356 Fasli (1946 A.D.) who in turn sold the above property to his wife Smt. Aktherunnisa Begum through sale deed, dated 2nd Sharewar. 1356 Fasli (02-07-1947).

97. The partition suit being O.S. No. 92 of 1967 was filed by Smt. Ameerunnisa Begum claiming to be the daughter of late Nawab Mohd. Farooq Ali Khan against her mother Smt. Aktherunnisa Begum was dismissed upholding the title of Mrs. Aktherunnisa Begum. Once again disputes arose and the 7th respondent in the present L.G.C. filed partition suit being O.S. No. 328 of 1983 against Smt. Aktherunnisa Begum and others and the said suit is pending.

98. The summary of rival contentions is evident even from a plain reading of the allegations made in the L.G.C. That according to Smt. Ameerunnisa Begum, all the sons of Smt. Aktherunnisa Begum predeceased her, and therefore, the legal representatives of such sons viz., respondents 2 to 21 (in the L.G.C.) are not entitled to any share in the property in question. On the other hand respondents 2 to 21 contend that Smt. Aktherunnisa Begum gifted the property in question to her widowed daughters-in-law and the sons by oral gifts in the year 1974 which were later ratified by way of Memorandum of Gifts. The donees accepted the gifts and the same were acted upon and they were in continuous and uninterrupted possession of the property as lawful owners. The names of respondents 2 to 21 were mutated in the municipal records and they have been paying the property tax.

99. The following suits for declaration of title and recovery of possession filed by the vendors of the 1st respondent/applicant against the writ petitioners, respondents 2 to 21 (in the L.G.C.) are pending before the learned XI Additional Chief Judge’s Court, City Civil Court, Hyderabad:

(1) O.S. No. 8 of 1987

(2) O.S. No. 9 of 1987

(3) O.S. No. 10 of 1987

(4) O.S. No. 16 of 1987

(5) O.S. No. 170 of 1987.

100. Apart from the above, ten more suits filed against the tenants of the writ petitioners by the 1st respondent’s vendors and two more suits, O.S. No. 117 of 1997 and O.S. No. 118 of 1997 filed by the writ petitioners against the 1st respondent seeking declaration that the sale deeds executed in their favour by respondents 22 to 34 (in the L.G.C.) as void, are also pending adjudication on the file of the learned XIII Additional Chief Judge’s Court, City Civil Court, Hyderabad. The details of these suits and the nature of controversy between the parties with regard to right, title and interest in the schedule property are mentioned in detail in the concise statement filed by the 1st respondent/applicant itself before the Special Court. The very sale deed under which the 1st respondent/applicant claimed the property is the subject matter in the two suits, referred to hereinabove, which were admittedly filed much before filing of the L.G.C.

101. Respondents 2 to 21 (in the L.G.C.) are the residents of the application schedule property even according to the averments made in the concise statement in Form-I of the L.G.C. application. There is no allegation in the application that the respondents 2 to 21 (in the L.G.C.) are “land grabbers” and they have “grabbed” any land except a vague statement in paragraph 28 of the application in the L.G.C. that the land was grabbed by the 1st respondent (in the L.G.C.) taking advantage of the absence of the applicant (in the L.G.C.) at site.

102. That under the agreement of sale, dated 22-6-1995, the schedule property was agreed to be conveyed to the 1st respondent/applicant, wherein it was clearly mentioned that the vendor, Smt. Ameerunnisa Begum, was in physical and symbolic possession of the property, since the death of her mother, and the purchaser has agreed to purchase the land for development including the portions in possession of the third parties and other persons and the purchaser had undertaken the responsibility of evicting them at his own costs and responsibility. In Clause 10 of the agreement, it is mentioned, “the expenses and the responsibility for evicting the third parties and other persons in the premises in their occupation shall be borne by the purchaser, but the vendor shall co-operate and extend the necessary support to the purchaser”. Further Clause 13 states, “the purchaser shall not claim any refund of amount from out of the sale consideration nor form the built up area, in the event, the purchaser is unable to take possession of the area which is in possession of the third parties and other persons.”

103. In the sale deed that was executed on 11-8-1995 within a span of less than two months from the date of agreement of sale, it was stated that “the vendors hereby confirm and declare that they have on this day put the purchaser in physical possession of the said property……”

104. The recitals in the agreement of sale and the sale deed are contrary to each other. There is no explanation as to how the 1st respondent/applicant came into possession of the land. That an attempt was made before us by the learned counsel for the writ petitioners to invite our attention to another agreement entered by the 1st respondent/ applicant with the third parties after execution of the sale deed, dated 11-8-1995, for securing possession of the very same property, which is alleged to have been already delivered under the sale deed, in support of their contention that the possession of the property had never been delivered to the 1st respondent/applicant. That an attempt was also made to submit that pursuant to the said agreement, the third parties made an attempt to forcibly secure possession of the property in the process of which, the younger brother of the petitioner in W.P. No. 16633 of 2004 was killed. We are not inclined to take the said agreement and the statement into consideration, since the writ petitioners/respondents in the L.G.C. are not entitled to produce any documents before the Special Court for the purposes of deciding as to whether the case is a fit one for taking cognizance of by the Special Court.

105. In Konda Lakshmana Bapuji v. Government of A.P. and Ors., the Supreme Court observed that “for the purpose of taking cognizance of a case under the Act, existence of an allegation of any act of land grabbing is sine qua non and not the truth or otherwise of such an allegation”. The Supreme Court did not hold that the Special Court is obliged to take cognizance of a case on mere filing of the case without being satisfied about the ingredients of Section 2 (d) and 2 (e) of the Act. The Supreme Court interpreted the expression “land grabber” in Section Clause (d) of Section 2 and “land grabbing” in Clause (e) of Section 2 of the Act and observed:

“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 unauthorised 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 unauthorised structures; or (ii) he has given financial aid to any person for taking illegal possession of lands or for construction of unauthorised 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 persons.”

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.”

107. In P. Nanda Kumar v. K. Eswara Rao, (D.B.) a Division Bench of this Court upheld the order of the Special Court refusing to take cognizance of a case and rejected the application at the threshold on the ground that on the allegations made in the application that the lessee who was lawfully inducted into the possession of the property cannot be characterised as “land grabber” on his continuing in possession after termination of the lease because the initial entry was lawful. It is further observed:

“……. we have to see the status of person at the time of initial entry in the land. If a person enters into the land with the intention of grabbing it, which belongs to others, then he has to be styled as ‘land grabber’. In the present case, the initial entry in the land by the unofficial respondents herein was legal, as there was a lease between them.”

108. In Gouni Satya Reddi v. Government of A.P. and Ors., the Supreme Court held that mere fact of not being lawfully entitled to enter into possession by itself would not lead to inference of “land grabbing” unless possession is illegally taken, with that view in mind, it is a necessary ingredient of “land grabbing” i.e., the person taking possession must know it that he is acting illegally while taking possession.” The land grabber must be aware of the fact that he is entering into the possession illegally and without any lawful entitlement; if such elements are missing, it would not be a case of land grabbing.

109. We have already noticed the assertions and the claim of title by each of the parties and dispute as to the relationship and the pendency of proceedings, which are admitted and stated in the application filed in the L.G.C. by the 1st respondent/applicant. The agreement of sale and the sale deed, based on which the 1st respondent/claimant claims title, themselves, are the subject matter of more than one civil suit. In all those proceedings, the individuals impleaded as respondents in the L.G.C. are shown to be residing in the application schedule property asserting their right, title and interest in the property. It is not, even alleged in the concise statement of facts that all “of a sudden, they have intruded and forcibly taken possession of the application schedule property. The rival claimants asserting title and possession of the land can never be equated to that of “land grabbers”. It is admitted in the concise statement that parties asserting rival title, not altogether strangers to the schedule property. The Special Court, no doubt, exercises all the powers of Civil Court as well as the Court of Session for the purposes of even deciding the question of title of the land but only of the land alleged to have been grabbed. The Special Court is not a substitute for Civil Courts in the matter of adjudication of the inter se rights and disputes involving intricate questions of right, title and interest in the land. In the case on hand, the facts pleaded in the concise statement, at the most, may reveal the bona fide dispute of tile and possession; claims and counter claims in respect of the schedule property. Such bona fide disputes can never be equated to that of an act of land grabbing. The individuals involved in raising such bona fide disputes can never be characterized as “land grabbers”.

110. The averments made in the concise statement and the documents annexed thereto do not disclose any act of “land grabbing”. There is not even an allegation that the writ petitioners have greedily, unauthorisedly, unfairly either forcibly or violently or unscrupulously taken the possession of the land without any lawful entitlement. The only allegation in paragraph 28 of the application in the L.G.C. is “….. Thereafter the 1st respondent taking advantage of the absence of the applicant at site, forcibly took possession of the application schedule property and got filed caveat on 29-5-2004 disputing the right, title and interest of the applicant in and over the application schedule property.”

111. In paragraph 29 of the application in the L.G.C., it is averred, “….. respondent No. 1 in collusion with the respondents 2 to 21 who have no title to the property in question created documents to ‘grab the land’ of the applicant and under the guise of false and fabricated documents, the 1st respondent forcibly occupied the application schedule property and also adjoining land for which the applicant is holding agreement of sale and accordingly grabbed the land of the applicant”.

112. In our considered opinion, the mere repetition of expression “land grabber” and “land grabbing” by themselves would not be enough for taking cognizance of a case, unless the averments and the allegations made in the concise statement attract the ingredients of “land grabber” or “land grabbing”.

113. The allegations made in the application, which do not satisfy the ingredients of Section 2 (d) and 2(e) of the Act, do not warrant taking cognizance of the case and all such applications shall be deemed to be frivolous in their nature which are bound to be rejected by the Special Court without taking cognizance under the provisions of the Act.

114. In the result, we hold that the allegations and the averments made in the concise statement as well as the documents annexed to the application in the L.G.C., if read, accepting those allegations as true, no case of land grabbing is made out for granting relief and no cause of action is shown.

115. The observations and the comments, if any, made in this order shall, however, have no bearing, whatsoever, upon any of the proceedings pending between the parties in various Courts or the proceedings, if any, to be initiated by either of the parties in respect of the schedule property.

116. In view of our conclusion to quash the proceedings on the file of the Special Court, the 1st respondent herein (applicant in the L.G.C.) shall be at perfect liberty to avail all such remedies, as may be available to it, in law, in which event, the matter shall have to be decided on its own merits uninfluenced by the observations made in this order.

117. The impugned order passed by the Special Court suffers from incurable infirmities and errors apparent on the face of the record. It is eminently a fit case for exercising our Certiorari jurisdiction.

118. Let a Writ of Certiorari be issued. No order as to costs.