Gujarat High Court
Tirathdas Jethanand Dhamvani vs State Of Gujarat on 18 August, 2023
Bench: Aniruddha P. Mayee
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 11201 of 2022
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TIRATHDAS JETHANAND DHAMVANI
Versus
STATE OF GUJARAT
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Appearance:
ADVOCATE NAME DELETED for the Petitioner(s) No. 1
HARSHADKUMAR D PANCHAL(9015) for the Petitioner(s) No. 1
for the Respondent(s) No. 2,3
MR.ASHUTOSH DAVE, AGP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE ANIRUDDHA P. MAYEE
Date : 18/08/2023
ORAL ORDER
1. This Court has passed an order dated 25.1.2023 in
Special Civil Application No. 18 of 2023 as follows:-
"6. The short issue, which falls for deliberation
before this Court, is that whether the petitioner has a
remedy by filing an application before the Special Court
under Section 9 of the Act or he can directly challenge
the action of the Committee by filing the writ petition
before this Court.
7. For answering the aforenoted issue, I may
incorporate the relevant provision of the Act and Rules.
"SECTION 9: Procedure and powers of Special
Courts
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(1) The Special Court may, either suo moto or on
application made by any person, or any officer
authorized by District Collector, 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.
(2) Notwithstanding anything in the Code of
Civil Procedure, 1908, any case in respect of an
alleged act of land grabbing or the
determination of question of title and ownership
to, or lawful possession of any land grabbed
under this Act, shall, subject to the provisions
of this Act, be triable in the Special Court and
the decision of Special Court shall be final.
(3) Notwithstanding anything in the Code of
Civil Procedure 1908, the Special Court may
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 this Act and of any rules made
thereunder while deciding the Civil liability,
(4) Notwithstanding anything in the Code of
Criminal Procedure, 1973, it shall be lawful for
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the Special Court to try all offences punishable
under this Act.
(5) 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 on oath in disproof of the charge
made against him or any person charged
together with him in the criminal proceeding:
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 sa me
proceeding.
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(6) Every case under sub-section (1) shall be
disposed off 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.
(7) 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.
(8) When an offence of land grabbing is proved,
the Special Court may if it thinks fit, order that
possession of the same be restored to that
person after evicting by force, if necessary, any
other person who may be in possession of the
property.
(9) 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 Jantri
value of the land grabbed as on the date of the
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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
such representation and evidence.
SECTION 10: Special Court to have powers of
Civil Court and the Court of Sessions.
Save as expressly provided in this Act, the
provisions of the Code of Civil Procedure,
1908 and the Code of Criminal Procedure,
1973, in so far as they are not inconsistent
with the provisions of this Act, shall apply to
the proceedings before the Special Court and
for the purposes of the provisions of the said
enactments, Special Court shall be deemed
to be a Civil Court, or as the case may be, a
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Court of Sessions and shall have all the
powers of a Civil Court and a Court of
Sessions and person conducting a
prosecution before the Special Court shall be
deemed to be an Assistant Public Prosecutor.
12. Notwithstanding anything contained in
the Code of Criminal Procedure, 1973,-
(a) no information about the commission of an
offence under this Act, shall be recorded by a
police officer without the prior approval of the
District Collector in consultation with the
Committee notified by the Government;
THE GUJARAT LAND GRABBING (PROHIBITION)
RULES, 2020
RULE 5: Inquiry by the Committee
(1) On receipt of the application, the Collector
shall entrust the inquiry to the concerned Prant
Officer and/or any other officer including a
Police Officer as
may be deemed fit.
(2) In case of Government Land or in case
where the person who has allegedly grabbed
the land is headstrong person, the collector or
the State Government may take suo-moto
cognizance and action shall thereafter be
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taken in accordance with sub-rule (3) to (10).
(3) On receipt of the application, the Prant
Officer or the officer to whom the application
has been referred to shall ask concerned
authorities to furnish report containing all the
details and permission issued by them along
with relevant documents within 5 days.
(4) An inquiry shall be conducted for the
prima facie locus standi of the applicant based
on reports and records received from different
authorities; and a conclusion to be derived
whether a land title can be established.
(5) An inquiry shall be conducted by the
Prant Officer or the officer to whom application
has been referred to, whether Land in question
has been occupied or attempted to occupy, in
unauthorized manner, with the use of force,
threat, intimidation and deceit or by cheating,
fraud and/or forgery:
(6) The Prant Officer or the officer
authorized by Collector shall submit the final
report to the Collector within 21 days from the
date of the receipt of the application. The report
shall state whether prima facie case under the
Act is established or not; The committee may
also ask for further inquiry if it considers
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necessary.
(7) In case of unauthorized, continued
occupancy of the land which was allotted or
leased to any person by the Government with
conditions attached, is cancelled by the
competent authority or on the expiry of lease
and renewal of application for the same is not
under consideration then under such
circumstances the committee may consider
such act as land grabbing.
(8) The committee shall consider the
inquiry report and decide further course of
action including filing an FIR within 21 days.
(9) As soon as the committee directs police
to file FIR, it should be filed within 7 working
days.
(10) The concerned investigation officer shall
file final report before the special court within
30 days from the date of First Information
Report.
RULE 7: Power of Special Court to refer Cases.
The Special Court, under section 9(1)
of the Act, may refer to the committee any
matter of which cognizance has been taken by
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the court either suo-moto or on an application
made by any person to the court and ask for
the scrutiny report from the committee as per
Rule 5."
Section 9 of the Act prescribes a
detailed procedure and powers of the Special
Court formed under the Act. The section
stipulates that the Special Court may either suo
motu or an application made by any person can
take cognizance and try every case arising out
of the alleged Act of Land Grabbing or lawful
possession of the land grabbed. Sub-sections
(2) and (3) of section 9 of the Act mention about
following its own procedure, which shall not be
inconsistent with the principles of natural
justice and fair play. Sub-section (4) of Section
9 of the Act gives the power of the Special Court
to try all offences punishable under the Act.
Sub-section (5) of Section 9 of the Act empowers
the Special Court to determine the civil and
criminal liabilities against the land grabbers to
be initiated and accordingly examine the
evidence adduced by the respective parties.
Sub-section (6) of Section 9 of the Act prescribes
for the limitation of six months to dispose of the
proceedings and it is further stipulated that the
Special Court may if it thinks fit, order that
possession of the land, which is grabbed, and
direct be restored to that person after evicting
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by force. Finally, Section 9 of the Act provides
the Special Court to pass such order as it may
deem fit to advance a cause of justice and also
award compensation in terms of money for
wrongful possession of the land. Section 10 of
the Act prescribes the applicability of the
provisions of the Code of Civil Procedure, 1908
and the Code of Criminal Procedure, 1973, in
so far as they are not inconsistent with the
provisions of this Act, to the proceedings before
the Special Court. Section 10 of the Act further
prescribes that "for the purposes of the
provisions of the said enactments, Special
Court shall be deemed to be a Civil Court, or as
the case may be, a Court of Sessions and shall
have all the powers of a Civil Court and a Court
of Sessions and person conducting a
prosecution before the Special Court shall be
deemed to be an Assistant Public Prosecutor."
Thus, the submission advanced by
learned Advocate Mr.Gadhvi to the effect that
the Special Court has no power to take
cognizance of the offence of land grabbing since
it does not have the power akin to the powers
conferred to Magistrate Court under section 200
of the Code of Criminal Procedure, 1973 does
not merit acceptance. The aforenoted powers
conferred to the Special Court under section 5
read with section 10 of the Act empowers the
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Special Court to take cognizance of the offence
of land grabbing. The petitioner cannot equate
the powers of the Special Court to that of
Magistrate. The Special Court is constituted
under the Act for the purpose of giving effect to
the provisions of the Act for the sole purpose of
examining the offence of land grabbing.
Finally, Section 12 of the Act provides
the remedy of an appeal against the order
passed by the Special Court before the High
Court.
8. The petitioner has contended before this Court
that after necessary exercise is undertaken under Rule
5 of the Rules by the Committee, he has no other option,
but to approach the High Court by filing the writ petition.
It is submitted that the Special Court can only refer the
matter to Committee and in the present case since the
petitioner has filed an application directly and the
Committee has already formed its opinion, the petitioner
has no remedy, but to challenge the action of the
Committee before this Court. The submission, which is
advanced before this Court, runs contrary to the
laudable objects of the Act and if such submission is
accepted, the entire purpose of creating the Special
Court under the Act and the procedure as mentioned in
Section 9 of the Act and the powers conferred below
Section 10 of the Act to the Special Court will get
frustrated. The entire Act is promulgated for formation of
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Special Court for undertaking necessary procedure
declaring a land grabber responsible for the offence of
land grabbing. Such procedure is prescribed under
Section 9 of the Act and further it also empowers the
Special Court to restore the possession of the person,
whose land is grabbed and also pay the award of
compensation in terms of money. The provisions of Rule
7 of the Rules if are closely read, will clarify that the
legislature intended that while exercising the powers of
the Special Court under Section 9(1) of the Act, the
Special Court "may" refer to the Committee any matter of
which cognizance has been taken by the court either suo
motu or an application made by any person to the court
and ask for the scrutiny report from the Committee as
per Rule 5 of the Rules. The word 'used' in Rule 7 of the
Rules is 'may'. The powers conferred to the Committee
directly co-relates under Rule 7 to the powers of the
Special Court. Section 9 of the Act begins with the
expression that the Special Court may either suo motu or
an "application" made by any person can take
cognizance and try every case arising out of alleged act
of land grabbing. Thus, the power, which is to be
exercised by the Committee is subservient to the powers
of Special Court.
9. Thus, merely because the Committee has
opined and taken a decision on an application filed by
the petitioner, the same itself cannot dilute or negate the
powers of the Special Court of taking cognizance of an
offence under the Act. The petitioner is seeking to
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establish his case against the respondent nos.5 and 6
by alleging that they have grabbed his land by assailing
the report of the Committee directly before this Court.
The High Court cannot by-pass the procedure and step
into the shoes of the Special Court and undertake the
necessary proceedings holding the respondent nos.5
and 6 responsible for land grabbing. On the contrary,
the order passed by the Special Court is appealable
before the High Court under the provisions of Section
12A of the Act. Any observation made by the High Court
at this stage can directly affect the status of the
respondent nos.5 and 6.
10. Thus, the petitioner cannot take shelter
under Rule 7 of the Rules and contend that once the
scrutiny report of the Committee is available under Rule
5 of the Rules, the only remedy available to him to
challenge the same before this Court and thereafter,
seek a direction against the respondent nos.5 and 6, for
establishing the offence of land grabbing,
11. This Court, while exercising powers under
Article 226 of the Constitution of India, cannot examine
the report of the Committee and hold that the respondent
nos.5 and 6 are the land grabbers. If such an exercise is
undertaken, the High Court by entertaining the writ
petition, would be in fact exercising its appellate powers
under Section 12A of the Act directly by diverting the
procedure prescribed under Section 9 of the Act. On an
application made by the petitioner before the Special
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Court alleging land grabbing by the respondent nos.5
and 6, the Special Court can still call for the report from
the Committee if it "may" deem fit as per Rule 7 of the
Rules and it can also without calling for the fresh report
from the Committee can examine the current report and
initiate the proceedings on an application or suo motu
and further undertake the procedure prescribed in sub-
sections of Section 9 of the Act. The Special Court is not
confined by the findings of the Committee and while
examining the report of the Committee, it can initiate
further proceedings in an offence of land grabbing and
pass necessary orders, as it may deem fit by
undertaking the necessary procedure as prescribed
under Section 9 of the Act. Thus, the submission of the
petitioner of filing the writ petition directly challenging
the decision of Committee in absence of any provision of
appeal in the Act does not merit acceptance. Looking to
the scheme of the Act and Rules, no provision stipulating
the filing of an appeal against the decision of Committee
is required; since the Special Court is armed with
enough provisions to examine the offence of land
grabbing independent of findings of the Committee. The
petitioner has only to file an application alleging offence
of land grabbing before the Special Court. The Special
Court does not become functus officio only because the
Committee has taken a decision. The Committee formed
under the Rules cannot be placed at higher pedestal
than the Special Court.
12. Thus, the petitioner has an alternative
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remedy under Section 9 of the Act to approach the
Special Court by filing appropriate application of land
grabbing against the respondent nos.5 and 6 even after
the Committee has tendered its report. The Special Court
can always, after perusing the application made by the
petitioner, can initiate the procedure as prescribed under
Section 9 of the Act and if it desires call for further report
of the Committee. This Court by entertaining this writ
petition cannot adopt the procedure, as prescribed under
Section 9 of the Act merely because the Committee has
rendered a report under Rule 7 of the Rules. The
ultimate object of the petitioner is to evict the respondent
no.5 and 6 for the alleged offence of land grabbing,
which can only be examined by the Special Court on the
basis of the evidence adduced before it.
13. Reliance placed by learned Advocate on the
judgement of the Apex Court in the case of
P.V.Hanumantha Rao (supra) is misconceived since, in
the case before the Apex court, the judgement of the
Special Court was assailed before the High Court,
whereas in the present case, the petitioner has not
approached the Special Court. Similarly, reliance placed
on the provisions of the Assam Land Grabbing
(Prohibition) Act, 2010, Andhrapradesh Land Grabbing
(Prohibition) Act, 1982 and the Karnataka Land
Grabbing (Prohibition) Act, 2011 are also misconceived
since, the issue raised in the present writ petition is
confined to filing an application before the Special Court,
after the report of the Committee, and the same is
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required to be examined on the premise of the provisions
of the Act and Rules promulgated by the State of
Gujarat. The provisions of all the Acts which are referred
hereinabove are almost similarly worded, and they
provide analogous provisions with regard to creating a
Special Court for examining the offence of land grabbing.
14. The upshot of the aforesaid discussion is
that this Court cannot entertain the writ petition in wake
of the detail and exhaustive procedure prescribed under
Section 9 of the Act and the powers conferred to Special
Court under section 10 of the Act for examining the
offence of the land grabbing. The petitioner has an
efficacious alternative remedy of approaching the
Special Court by filing an application for the alleged
offence of land grabbing committed by the private
respondents."
2. In view of the above legal position, the present writ
petition filed by the petitioner is not entertained. The
petitioner is at liberty to approach the Special Court as
provided by the Act.
3. It is clarified that all the rights and contentions of
the petitioner are kept open to be agitated before the
appropriate forum. That, it is made clear that this Court has
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not gone into merits of the case and no opinion has been
expressed thereon.
4. Present Special Civil Application stands disposed of
accordingly. No order as to costs.
(ANIRUDDHA P. MAYEE, J.)
NABILA
