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2018 DIGILAW 1382 (GAU)

Abdur Rahim (Md. ) v. Abdul Odud (Md. )

2018-09-17

KALYAN RAI SURANA

body2018
JUDGMENT : KALYAN RAI SURANA, J. 1. Heard Mr. R. Chakravorty, the learned counsel appearing for the petitioners as well as Mr. J.I. Borbhuiya, the learned counsel appearing for the respondents. 2. By this application under Article 227 of the Constitution of India, the petitioners have challenged the order dated 27.10.2017, passed by the learned Additional District & Sessions Judge No. 1, cum Special Tribunal (Land Grabbing), Nagaon, thereby taking cognizance of Special (L.G.) Case No. 29/2017 as well as order dated 12.02.2018, passed by the said learned Court, thereby staying the further proceedings in Title Suit No. 93/2017 pending before the Court of learned Munsiff, Hojai, Sankardev Nagar under Section 10 CPC. The proceedings of the said Special (L.G.) Case No. 29/17 was also challenged on the ground that it is ultra vires the provisions of Section 2(d) and 2(e) of the Assam Land Grabbing (Prohibition) Act, 2010 and Rules framed there under. 3. The petitioners herein are the respondents in Special (L.G) Case No. 29/2017, which was instituted by the respondents herein. In the said case, it was projected that the respondents herein had interest over the land measuring 41B-2K-11L in respect of 12 separate pattas and various Dags mentioned herein. It was projected that on 25.06.2017, the petitioners herein along with some hired musclemen had prevented the respondents from cleaning the land and the fisheries and tried to dispossess the petitioners from the said land and fisheries but the land grabbing attempt had failed because of the obstruction by the petitioners. Another attempt of land grabbing was made on 04.07.2017, which was also prevented. Ultimately, on 5.7.2017, at about 7.00 A.M., the petitioners had grabbed the land of the respondents, including the fisheries. Accordingly, the said land grabbing case was instituted. 4. The petitioners, as the defendants No. 1, 2, 3, 5 and 7 had contested the case by filing their written statement, inter-alia, stating therein that the case was false and frivolous in nature and there was no land grabbing and it is submitted that the proceedings was not as per the prescribed form. Moreover, the case was not properly signed, verified and filed as per the requirement of Assam Land Grabbing (Prohibition) Act, 2010 and Rules framed there under. Moreover, the case was not properly signed, verified and filed as per the requirement of Assam Land Grabbing (Prohibition) Act, 2010 and Rules framed there under. It was stated that the case was false and it was denied that as the said land in occupation of the petitioners was the ancestral land of the respondents herein. It was projected that the petitioner No. 1 and the respondents herein are three own brothers and their father, Haji Esuf Ali died in the year 1997 and that they were occupying the entire land, living as a joint family. It was projected that the petitioner No. 1 through his earning had purchased land in the name of three brothers who had not contributed anything for acquiring the properties as the respondents herein were students. It was also claimed that the petitioner No. 1 had educated the respondents No. 1 and 2, who are now working respectively as an Assistant Engineer in NEEPCO and as a Subject Teacher in Daboka Higher Secondary School. It was projected that the properties were purchased by the petitioner No. 1, but the respondents No. 1 and 2 had illegally and stealthily obtained the revenue partition in respect of a part of suit land and by this collusive action, they are now harassing the petitioners by filing a false land grabbing case. Hence, it was prayed that the proceedings are liable to be quashed. 5. The learned counsel for the petitioners submits that the petitioners are not 'land grabbers' within the meaning of Section 2(d) of the Assam Land Grabbing (Prohibition) Act, 2010 and the action of the petitioners do not fall within the meaning of "land grabbing" as defined under Section 2(e) of the said Act. It is further submitted that the taking of cognizance of the case vide order dated 31.8.2017 was not notified in terms of Section 8(5) of the Assam Land Grabbing (Prohibition) Act under Form II of the Assam Land Grabbing (Prohibition) Rules, 2013. It is further submitted that the learned Tribunal did not comply with the provisions of sub-Rule 4 of Rule 6 of the aforesaid Assam Land Grabbing (Prohibition) Rules, 2013, as the report, if any, in terms of Rules 6(4) was not furnished to them. It is further submitted that the learned Tribunal did not comply with the provisions of sub-Rule 4 of Rule 6 of the aforesaid Assam Land Grabbing (Prohibition) Rules, 2013, as the report, if any, in terms of Rules 6(4) was not furnished to them. It is submitted that as the substantial rights of the petitioners was clouded and was in stake, they had instituted Title Suit No. 93/2017, which was pending before the Court of learned Munsiff, Hojai, Sankardev, Nagaon. The said suit was stayed by the learned Special Tribunal vide order dated 12.02.2018 under the provisions of Section 10 CPC. 6. The learned counsel for the respondents has submitted that as the respondents have been disposed illegally from the disputed land, not only their case under the Assam Land (Grabbing) Act, 2010 was maintainable, but on the question of the maintainability of the said proceedings, it is submitted that this Court should be slow appreciating the scope of the pleadings by giving its opinion when the said land grabbing proceedings itself is pending for disposal before the learned Special Tribunal. Moreover, it is submitted that as a huge land area has been illegally possessed by the petitioners, the present proceedings under the said 2010 Act was maintainable. The learned counsel for the respondents has made his submissions in support of the order impugned herein. 7. In the opinion of the Court, the proceedings under the Assam Land Grabbing (Prohibition) Act, 2013 is the proceedings where the civil rights of the parties are determined and thereafter the criminal liability is required to be determined by the learned Special Tribunal constituted under the Act. It is further seen that in the present case, the allegation of the learned counsel for the petitioners is that the notification of taking cognizance of a case as required under Section 8(5) of the said Act was not complied with. In the opinion of this Court, the provisions of Rule 7 of Assam Land Grabbing (Prohibition) Rules, 2013 prescribe that the Special Tribunal shall give notification in Form II. Moreover, the petitioners have alleged that no copy of the report as envisaged under Rule 6(4), of the said 2013 Rules has not been provided with. In the opinion of this Court, the provisions of Rule 7 of Assam Land Grabbing (Prohibition) Rules, 2013 prescribe that the Special Tribunal shall give notification in Form II. Moreover, the petitioners have alleged that no copy of the report as envisaged under Rule 6(4), of the said 2013 Rules has not been provided with. In this regard, it is seen that there is no provision in the Assam Land Grabbing (Prohibition) Act, 2010 that for non-compliance of Rules 6(4) and Rule 7 of the 2013 Rules, the land grabbing proceedings would stand vitiated. There is no denial that there is no requirement of compliance of Rule 6(4) or Rule 7 of the 2013 Rules. In the present case, the petitioners had appeared in the proceedings before the learned trial Court and, as such, being aware about the taking cognizance of the case, the non-compliance of Rule 6(4) and Rule 7 has not cause any prejudice to the petitioners herein. Therefore, the effect of noncompliance of Rule 6(4) and Rule 7 is left open to be decided in a more appropriate case. 8. This Court in the case of XXX Vs. In Re: State of Assam, reported in 2017 (5) GLT 854 : (2018) 2 GLR 313, had held that if an alleged land grabber claims or puts up defence of proprietary right or ownership right or possessory right for the land in question, then the civil liability would be adjudicated first and if he fails to establish any such right, then criminal proceedings for prosecution of land grabber would re-commence. Thus, it was held that as per the Scheme of 2010 Act, upon cognizance being taken of the criminal offence of land grabbing, the Special Tribunal would proceed with the prosecution of the land grabber not only for the purpose of punishing him but also to recover the grabbed land from the land grabber for restoring possession of the grabbed land to the person from whom the land was grabbed. It was further held that we have to bear in mind that the principle object of 2010 Act, is not to adjudicate the right, title or possession over the land in question. It was further held that we have to bear in mind that the principle object of 2010 Act, is not to adjudicate the right, title or possession over the land in question. It was further held that the legislature did not intend to prohibit the criminal trial of a person alleged to have committed an offence of land grabbing rather it postpones the criminal trial till adjudication of civil liability of the alleged land grabber in a summary manner. Therefore, in the opinion of this Court, the proceedings of the case instituted under Assam Land Grabbing (Prohibition) Act is not a suit to decide the right, title and interest of the parties and, as such, this Court finds that the provisions of Section 10 CPC cannot be invoked for staying the proceedings of any suit, which is lawfully filed and registered before the competent civil Court. The civil suit and Land Grabbing proceedings are for different intents and purposes and, as such, both the suit as well as the Lang Grabbing case can co-exist. 9. Under such circumstances, the impugned order dated 12.02.2018, in so far it concerns the exercise of power under Section 10 CPC by the learned Special Tribunal to stay the proceedings of T.S. No. 93/2017, pending before the Court of learned Munsiff, Hojai, Sankardev Nagar, the same is not sustainable on facts in law and, as such, the said order stands set aside by allowing the said suit to proceed in accordance with law. 10. In view of the discussions above, when the Special Tribunal constituted under the 2010 Act is required to first determine the civil liabilities and thereafter the learned Tribunal is required to decide the civil liability about the allegations of land grabbing, in view of the ratio laid down in the case of XXX Vs. State of Assam (supra), no case is made out for quashing the proceedings of Special land (L.G) Case No. 29/2017 and/or to hold it to be ultra vires the provisions of Section 2 (d) and Section 2(e) of the Assam Land Grabbing (Prohibition) Act, 2010. 11. The land grabbing proceeding is required to be heard and disposed of in a summary manner and, as such, in order to ensure speedy trial, mini-trial at every stage of a land grabbing proceedings is neither envisaged nor desired. 11. The land grabbing proceeding is required to be heard and disposed of in a summary manner and, as such, in order to ensure speedy trial, mini-trial at every stage of a land grabbing proceedings is neither envisaged nor desired. Therefore, at this stage, this revisional Court is inclined not to interfere in this land grabbing proceedings at an interlocutory stage. Any interference with a land grabbing case at its initial and/or interlocutory stage at a drop of a hat shall convert such an urgent proceeding into a long drawn proceeding, which would frustrate the very purpose of the said Act. 12. Similarly, as indicated above, although the compliance Section 6(4) and Section 7 of the Assam Land (Grabbing) Act, 2010 is desired, but the said provisions being directory and not mandatory, the non-compliance of the said Rules does not vitiate the proceedings instituted under the said 2010 Act, because with the appearance of the respondents in such proceeding, it is seemed that the respondents have the notice of the nature of offence alleged. 13. In view of the discussions above, as the civil and the criminal liability has not been decided by the learned Special Tribunal on the basis of materials available on record, no case is made for quashing of the order dated 27.10.2017, thereby taking cognizance of the said Land Grabbing, because at this stage the averments made in the objection filed in a land grabbing case Cannot be evaluated on its merit. 14. Hence, in view of the discussions above, this application stands partly allowed by setting aside only that part of the order dated 12.02.2018, passed by the learned Special Tribunal cum Additional District and Sessions Judge No. 1, Nagaon, by which the proceedings of T.S. No. 93/2017, pending before the Court of learned Munsiff, Hojai, Sankardev Nagar was stayed in exercise of power under Section 10 CPC. Resultantly, the said suit shall proceed for trial in accordance with law. 15. The parties are left to bear their own cost. 16. The parties, who are duly represented before this Court by their respective counsel, shall appear before the Court of the learned Addl. Resultantly, the said suit shall proceed for trial in accordance with law. 15. The parties are left to bear their own cost. 16. The parties, who are duly represented before this Court by their respective counsel, shall appear before the Court of the learned Addl. District & Sessions Judge No. 1, cum-Special Tribunal, Nagaon in connection with Special (L.G) Case No. 29/2017 without any further notice of appearance on 01.10.2018, and by producing a certified copy of this order of this Court, the parties shall seek further instructions from the said learned Court. 17. Similarly, the parties shall also appear before the Court of the learned Munsiff, Hojai, Sankardev Nagar on 03.10.2018 in connection with T.S. 93/2017, without any further notice of appearance, and by producing the certified copy of this order, the parties shall seek further instructions from the said learned Court.