Abdul Mannan Akond vs Hasina Yasmin And 2 Ors
2022 Latest Caselaw 3503 Gua

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GAHC010104872021




                              THE GAUHATI HIGH COURT
   (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                                 Case No. : CRP/43/2021

            ABDUL MANNAN AKOND
            S/O- LT. MOBER AKOND, VILL- SAGOLIA PART-II, P.O. BHAIBAZAR, DIST.-
            DHUBRI, ASSAM



            VERSUS



            HASINA YASMIN AND 2 ORS.
            D/O ABDUL HAMID

            2:RAISUL ISLAM AZAD
             S/O ABDUL HAMID


            3:REKIBUL ISLAM AZAD
             RESPONDENT NO 1 TO 3 ARE RESIDENTS OF VILL DHIRGHAT

P.S CHAPAR P.O CHAPAR DIST DHUBRI PIN 783371 ASSA

Advocate for the Petitioner : MS. R CHOUDHURY

Advocate for the Respondent : MS. S PARVEEN (R-1,2,3) Page No.# 2/7

BEFORE HONOURABLE MR. JUSTICE DEVASHIS BARUAH

JUDGMENT AND ORDER (ORAL)

Date : 13-09-2022

1. Heard Ms. R. Choudhury, the learned counsel appearing on behalf of the Petitioner and Ms. S. Parveen, the learned counsel appearing on behalf of the Respondents.

2. This is an application filed under Section 115 read with Section 151 of the Code of Civil Procedure, 1908 challenging the judgment and order dated 30.03.2021 passed by the learned Presiding Officer, Special Tribunal (Land Grabbing), Dhubri in T.S. (L/G) Case No.22/2015 whereby the application filed by the Respondents herein was allowed thereby declaring the right, title and interest over the disputed land and the Petitioner was held to be a land grabber and accordingly liable to be evicted.

3. The learned counsel for the Petitioner has submitted that the Court below completely erred in law in passing the impugned judgment and order taking into consideration that the Court below did not take into consideration the provisions of Section 2(d) of the Assam Land Grabbing (Prohibition) Act, 2010 wherein the term "Land Grabber" has been defined. It has also been submitted by the learned counsel for Petitioner that a perusal of the said Section would clearly go to show that the person who have title or ownership or physical possession over the land cannot be held to be a land grabber and therefore, the entire proceedings initiated by the Respondents herein is totally misconceived. The learned counsel for the Petitioner further submitted that the Court below having failed to take into account the said aspect of the matter that the impugned judgment and order dated 30.03.2021 passed in T.S. (L/G) Case No.22/2015 by Page No.# 3/7

the learned Presiding Officer, Special Tribunal (Land Grabbing), Dhubri is liable to be set aside and quashed.

4. On the other hand, the learned counsel appearing on behalf of the Respondents submited that the Petitioner herein though appointed as a caretaker and on the basis of which the Petitioner was in possession of the suit property but his possession has become illegal and unauthorized and as such the Court below have rightly passed the impugned judgment and decree.

5. Upon hearing the learned counsel for both the parties and upon perusal of the materials on record, it is clearly apparent that it is the specific stand of the Respondents in the proceedings that pursuant to the execution of the Deed of Sale bearing Deed No.243 dated 11.02.2021, the possession of the land was handed over by the Petitioner by the Respondents therein and in that regard, the Land Holding Certificate was also issued in favour of the Respondents. It was the further case of the Respondents/Complainants that the Respondents engaged the Petitioner herein as a caretaker of the land but later on he grabbed the same.

6. In the backdrop of the case of the Respondents/Complainants herein, can it be said that the Petitioner herein is a land grabber? The answer of the same can be found upon a perusal of Section 2(d) of the Assam Land Grabbing (Prohibition) Act, 2010 which defines the term "Land Grabber". The said Section 2(d) is quoted hereinbelow.

"2(d) "land grabber" means a person or a group of person who occupy or attempt to occupy with or without the use of force, threat, intimidation and deceit, land over which he or they have no ownership, title or physical possession and includes any person who gives financial aid to any person or group of persons for taking up illegal possession of land over which he or they have no ownership of tile and for construction of unauthorized structures thereon, or who abets the doing of any of the above mentioned acts, and also includes the successors-in-interests."

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7. This Section 2(d) has been come up for consideration before this Court in CRP Case No.74/2018 i.e. in the case of Anarul Hoque alias Anar Hussain Vs. Sadir Ali which was delivered on 27.01.2020 by a Coordinate Bench. Paragraph Nos. 18, 19 and 20 of the said judgment being relevant are quoted hereinbelow.

"18. As per Section 2 (d) of the Assam Land Grabbing (Prohibition) Act, 2010, land grabber is defined as a person, who occupies the land by illegal means as indicated in clause (d) and clause (e) of Section 2 of the Act, over which he/they has/have no ownership, title or physical possession and includes any person, who helps financially or otherwise in grabbing the land. Thus, from the expression appearing in the definition of "land grabber", a person or persons, can be said to have grabbed a land, over which he/they has/have no "ownership", "title" or "physical possession". Therefore, one must bear in mind the connotation of the expressions "title", "ownership" and "physical possession. A land grabber must be one, who must not have title or ownership or physical possession over the land. The disjunctive 'or' in between ownership, title and physical possession clearly demonstrates, that if a person has title or ownership or physical possession over the land, he cannot be a grabber of the said land. A person may not have title or ownership, but if he has been in settled physical possession of a land for a long time and the possession is not obtained by any illegal means, he cannot be dubbed as land grabber, because in order to constitute "land grabbing" as defined in section 2(e) of the Land Grabbing Act, as transparent from the expression "without any lawful entitlement and with a view to illegally taking possession etc" there must be criminal intention. Dehors criminal intention mere unauthorised possession may not come with the definition of "land grabbing", although, there may be a civil dispute over title or possession.

19. When a person has come into the possession of a land initially in any legal or authorised manner and remained in physical possession of the land for a long time without any interruption, one cannot come in one fine morning and file a petition under the Land Grabbing Act, even if such possession subsequently becomes unauthorised. A person may enter into possession legally under some authority or unauthorisedly. Once a person enters into possession of a land by any legal means or under any kind of authority, even if, later on, his possession is found to be not in conformity with the law, such physical possession of the person shall not come within Page No.# 5/7

the purview of the Land Grabbing. For example a person may enter into possession of the land with some sort of permission or license implied or expressed oral or written and subsequently his possession becomes unauthorised because of his licensee or permission being revoked, such unauthorised possession and the dispute arising there-from shall not come within the purview of the Land Grabbing Act, nor the special tribunal assume the jurisdiction to deal with such dispute involving the question of right, title and possession, reason being that the power of the civil court or criminal court enjoyed by the tribunal is limited to the land, which comes within the definition of "land grabbing" as defined in Section 2 (e) of the Assam Land Grabbing Act. Unless the facts brings the case within the definition of land grabbing, i.e., unauthorized occupation with criminal intention, the tribunal cannot exercise jurisdiction or decide the question of possession or title of a party. The proposition would be further clear from the preamble of the Act, which provides as under :-

Preamble - Whereas there are organized attempts on the part of certain lawless persons operating individually and in groups to grab, either by force or by deceitful means or otherwise, lands whether belonging to the Government, a Public Sector Undertaking, a local authority, a religious or charitable institution or endowment, including a wakf or any other private persons or a site of historical monuments etc.;

And, whereas it is necessary to arrest and curb immediately such unlawful activities of land grabbing ;

And, whereas public order is adversely affected by such unlawful activity of land grabbers."

20. From the preamble of the Assam Land Grabbing (Prohibition) Act, 2010 also, it is abundantly clear, that the object of the Land Grabbing Act is to prevent organised attempts on part of certain lawless persons operating individually and in groups to grab either by force or by deceitful means or otherwise; lands, whether belonging to the State, a public sector undertaking, a local authority, a religious or charitable institution or endowment etc. Therefore, the usual civil dispute concerning the land relating to the possession or title cannot be a subject matter under the Assam Land Grabbing Act, 2010, unless the unauthorized occupation or possession is associated with criminal intention. Therefore, mere unauthorized possession shall not constitute "land grabbing" unless such occupation or possession is actuated by illegal acts and criminal intention and comes within the definition of "land grabbing"."

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8. From a reading of the said judgment, it would appear that the person who has title or ownership or physical possession over the land, cannot be termed as a land grabber. This Court has gone in detail on question what would amount to have physical possession. It was opined by the Co-ordinate Bench that a person who is in settled legal physical possession of the land for a long time and the possession has not been obtained by any illegal means cannot be construed to be a land grabber. In Paragraph No.19 of the said judgment, it has been opined that when a person has come into the possession of a land initially in any legal or authorised manner and remained in physical possession of the land for a long time without any interruption, one cannot come one fine morning and file a petition under the Land Grabbing Act, even if such possession subsequently becomes unauthorised.

9. In the backdrop of the above, if this Court takes into consideration the facts involved in the instant case, it would be seen that it is the specific case of the Respondents/Complainants that the Respondents/Complainants have appointed the Petitioner herein as a caretaker and he was possessing the land on behalf of the Respondents/Complainants but later on, the Petitioner grabbed the said land. Taking into consideration the observations of a Co-ordinate Bench of this Court, it is the opinion of this Court that the Petitioner's possession initially was a legal and authorized possession as he has entered into possession legally as per the case of the Respondents/Complainants herein. But later on, the possession of the Petitioner has become illegal and unauthorized. Under such circumstances, the Petitioner cannot be held to be a land grabber within the meaning of Section 2(d) of the of the Assam Land Grabbing (Prohibition) Act, 2010. Consequently, the entire proceedings initiated in T.S. (L/G) Case No.22/2015 and the impugned judgment and decree dated 30.03.2021 passed Page No.# 7/7

by the learned Presiding Officer, Special Tribunal (Land Grabbing), Dhubri is totally misconceived and without jurisdiction and accordingly the impugned judgment and order dated 30.03.2021 is set aside and quashed.

10. Before concluding, it is clarified that the observations made herein shall not affect the right of the Respondents/Complainants to file a regular suit for eviction of the Petitioner by following the due process.

11. With above observations and directions, the instant petition stands disposed of.

12. The interim order passed earlier stands vacated.

13. Return the LCR to the Court below.

JUDGE

Comparing Assistant