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2010 DIGILAW 749 (AP)

Chinna Ramulu v. G. T. K. Rangacharyulu

2010-08-12

L.NARASIMHA REDDY

body2010
JUDGMENT : The A.P. State Legislature enacted the Andhra Pradesh Land Grabbing (Prohibition) Act, 1982 (for short ‘the Act’) prescribing special procedure for eviction of land grabbers. Special Court at the helm and Special Tribunal in every District are constituted. The object was to ensure speedy disposal of cases pertaining to land grabbing, so much so, in Section 7-A (7) of the Act, it was directed that every case brought before a Special Tribunal shall be disposed of finally within six months from the date of institution. This case demonstrates as to how hopes of the Legislature proved to be unrealistic. Twenty years have elapsed since the respondent filed L.G.O.P.No.940 of 1990 before the Special Tribunal-cum-Chief Judge, City Civil Court, Hyderabad (for short ‘the Tribunal) alleging that the petitioners herein grabbed their property admeasuring 418 square meters in Survey No.129/101 of Shaikpet Revenue Village. By this time, thrice the matter shuttled between Special Tribunal and Special Court and in the fourth round, it is yet to record any progress, worth its name. The L.G.O.P. was instituted with an allegation that the petitioners have grabbed the vacant land and thereafter, constructed several mulgies and a house thereon. The petitioners opposed the L.G.O.P. by filing a counter-affidavit. After full trial, the Tribunal allowed the L.G.O.P. on 28.06.2002 declaring the petitioners as land grabbers. They filed L.G.A.No.13 of 2002 before the Special Court under A.P. Land Grabbing (Prohibition) Act, Hyderabad (for short the ‘Special Court’). The appeal was allowed and the matter was remanded. After remand, the Tribunal dismissed the L.G.O.P. on 19.08.2004. This time, it was the turn of the respondents to file appeal being L.G.A.No.2 of 2005. The appeal was allowed on 06.11.2006 directing that the Tribunal may call for the report from the Mandal Revenue Officer. At that stage, the petitioners filed I.A.No.2979 of 2007 in L.G.O.P.No.940 of 1990 with a prayer to reject the L.G.O.P. on the ground that the report submitted by the Mandal Revenue Officer did not support the case of the respondents. The I.A. was allowed on 10.12.2007. Aggrieved by the same, the respondents filed L.G.A.No.6 of 2008. The appeal was allowed on 22.12.2008 and the matter was remanded. The petitioners, in turn, filed W.P.No.1976 of 2009 before this Court. A Division Bench of this Court dismissed the writ petition on 16.02.2009. The I.A. was allowed on 10.12.2007. Aggrieved by the same, the respondents filed L.G.A.No.6 of 2008. The appeal was allowed on 22.12.2008 and the matter was remanded. The petitioners, in turn, filed W.P.No.1976 of 2009 before this Court. A Division Bench of this Court dismissed the writ petition on 16.02.2009. The petitioners filed I.A.No.3453 of 2009 in L.G.O.P.No.940 of 1990 with a prayer to frame a preliminary issue as to the maintainability of the L.G.O.P. They placed reliance upon a judgment of this Court in Mohammad Vajahath Hussain Vs. Special Court under A.P. Land Grabbing (Prohibition) Act 2007(5) ALD 6 . Through the said judgment, this Court held that in case the subject matter of the land grabbing case is a building with appurtenant land, the remedy under the provisions of the Act is not available. The I.A. was opposed by the respondents. Through its order, dated 25.02.2010, the Tribunal dismissed the I.A. Hence, this revision. Sri V.Rajagopal Reddy, learned counsel for the petitioners, submits that even according to the recitals in the L.G.O.P., there existed a building upon the land and in that view of the matter, the ratio of the judgment referred to above gets attracted and that there was no justification for the Tribunal in rejecting the I.A. He contends that the purport of the evidence that is recorded in the case as well as the subsequent orders issued by the Government regularizing the property in favour of the petitioners discloses that there existed a building much prior to the filing of the L.G.O.P. Sri C.B.Rama Mohan Reddy, learned counsel for the respondents, on the other hand, submits that for the purpose of determining the jurisdictional issue, it is only the contents of the L.G.O.P. that are to be taken into account and if one looks at the contents of the present L.G.O.P., it is evident that what was grabbed by the petitioners was open land and the construction was made thereafter. He contends that even in their counter-affidavit, the petitioners admitted this fact and in that view of the matter, there is no basis for the I.A. The learned counsel further submits that in clear and categorical terms, a Division Bench of this Court in W.P.No.1976 of 2009 held that the plea of the petitioners in this regard cannot be accepted. The O.P. is now anxiously awaiting disposal before the Tribunal for the third time. The O.P. is now anxiously awaiting disposal before the Tribunal for the third time. The trial of the same is in progress. The petitioners filed I.A.No.3453 of 2009 with a prayer to frame a preliminary issue and to decide the same before the matter is dealt with on merits. According to them, the L.G.O.P. is not maintainable under the Act, if the subject matter thereof is a building with appurtenant land. The respondents, on the other hand, pleaded that what was grabbed by the petitioners was an open land and the building was constructed thereafter. The sole basis for the petitioners to file the I.A. was the judgment in Mohammad Vajahath Hussain’s case (supra). It is, no doubt, true that as a principle, this Court held that if what is grabbed by the respondent in L.G.O.P. is a building with appurtenant land, the remedy under the Act is not available. A clear distinction was maintained in respect of a land, which is grabbed, and thereafter a building is constructed thereon. In para 28 of the Judgment, their Lordships observed as under: “From the averments made in the application and in the concise statement appended thereto, as discussed hereinabove that it appears to be an unequivocal case of the applicant that the property in dispute is a house with its appurtenant site. A Distinction can be clearly drawn in between a case where occupying the open land and constructing a building and occupying a building along with the open land, which was constructed earlier. While in the former case, it was a case of grabbing the land for the purpose of constructing unauthorisedly a building and in the latter case, it was the occupation of a building along with its appurtenant land.” (Emphasis supplied) It is a settled principle of law that for the purpose of rejection of a plaint or framing of a preliminary issue, touching upon the very maintainability of the proceedings, it is only the contents of the pleadings that are to be taken on their face value and not the subsequent evidence or contradictions. If the pleadings as framed do not disclose the cause of action or stands barred by any statute, the case deserves to be rejected or a preliminary issue needs to be framed. If the pleadings as framed do not disclose the cause of action or stands barred by any statute, the case deserves to be rejected or a preliminary issue needs to be framed. If the matter is viewed in this background, the following aspects become clear: In column Nos.9, 10 and 11 of the prescribed form of the petition, the respondents clearly stated that the property in question is a dry land in Survey No.129/101, admeasuring 418 square meters. In column No.14, it was mentioned that a house with several mulgies were unauthorisedly constructed over the grabbed land. If this is taken into account, it becomes clear that the property that was said to have been grabbed was a land and the building came to be constructed by the petitioners thereafter. It is totally different from a case where the alleged grabbing is that of a constructed building with appurtenant land. Therefore, the contention of the petitioners cannot be accepted. Secondly, this very question was raised before this Court in W.P.No.1976 of 2009. After referring to the plea in detail, this Court held as under: “We have earnestly considered the aforesaid submissions so far as the second contention of the learned counsel for the petitioner viz., the maintainability of L.G.O.P. based upon the decision of this Court in Mohd.Vajahath Hussain’s Case (2 supra) is concerned, it is evident that no such ground was raised at any of the stages when this matter was agitated either before the Tribunal or before the Special court on earlier occasions. From the reopening paragraphs, above, it is evident that at least on three occasions, the matter was heard by the Special Tribunal as well as by the Special Court during the earlier rounds and finally, it was directed that the Special Tribunal to decide the O.P. afresh on all issues. Further, the impugned order is not based on the said ground. We are, therefore, not inclined to go into said question, at this stage.” When a Division Bench specifically refused to entertain that question by observing that it was not raised at any stage spread over two decades, the petitioners cannot be permitted to raise that very question before the Special Tribunal. We are, therefore, not inclined to go into said question, at this stage.” When a Division Bench specifically refused to entertain that question by observing that it was not raised at any stage spread over two decades, the petitioners cannot be permitted to raise that very question before the Special Tribunal. The learned counsel for the petitioners submits that the observation of the Division Bench that the question cannot be raised at that stage would mean that it shall be open to the petitioners to raise it before the trial Court. If that is the understanding of the petitioners, they can very well approach the Hon’ble Division Bench, which decides the matter, seeking necessary clarification in this regard. As long as the observation stands, it shall not be open to the petitioners to file an application for framing of preliminary issue. The civil revision petition is accordingly dismissed. There shall be no order as to costs.