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2018 DIGILAW 1443 (GAU)

Sanjay Kumar Agarwala v. State of Assam

2018-09-26

UJJAL BHUYAN

body2018
JUDGMENT : 1. Heard Mr. P. Kataki, learned counsel for the petitioner and Mr. S. Dutta, learned counsel appearing on behalf of Mr. S.K. Medhi, learned senior counsel for respondent No. 2. Also heard Mr. T.C. Chutia, learned Government advocate, Assam for respondent No. 1. There is no representation on behalf of respondent Nos. 3 and 4 though notice served. 2. By filing this petition under article 226 of the Constitution of India, petitioner seeks quashing of order dated 24.9.2015, passed by the learned Addl. Sessions Judge, Dibrugarh in Assam Land Grabbing Case No. 6/2015 accepting the final report submitted by the Officer in-Charge of Borboruah Police Station in connection with Borboruah PS Case No. 143/2015 registered under section 447/506/34, IPC read with sections 4/5 of the Assam Land Grabbing Act, 2010. 3. This court by order dated 22.1.2016 had issued notice. Case of the petitioner is that he had lodged a first information before the Borboruah Police Station alleging that on 28.5.2015 at around 9.30 am respondent Nos. 3 and 4 had illegally trespassed into his land carrying with them dangerous weapons and constructing bamboo fencing with the intent to grab his land illegally. When he protested, he was abused and threatened. On the basis of the aforesaid first information, Borboruah PS Case No. 143/2015 was registered under section 447/506/34, IPC read with section 4/5 of the Assam Land Grabbing (Prohibition) Act, 2010. Final report, being Final Report No. 65, dated 31.5.2015 was filed by the police before the learned Sessions Judge, Dibrugarh wherein, it was stated that it was a case of civil dispute. The final report was registered as Assam Land Grabbing Case No. 6/2015 and was assigned to the Addl. Sessions Judge, Dibrugarh for consideration. It appears that notice was issued to the informant as well as to the accused persons. Upon receipt of notice, petitioner had appeared and sought for time. On the date fixed, i.e., on 24.9.2015, petitioner filed an application seeking adjournment on the ground of treatment of his wife. The accused persons were present. Taking the view that petitioner had nothing to object about filing of the final report, the same was accepted and the proceeding was closed. 4. On the date fixed, i.e., on 24.9.2015, petitioner filed an application seeking adjournment on the ground of treatment of his wife. The accused persons were present. Taking the view that petitioner had nothing to object about filing of the final report, the same was accepted and the proceeding was closed. 4. I am afraid the manner in which the order dated 24.9.2015 was passed reveals that the learned court below had failed to appreciate the very purpose and object behind enactment of Assam Land Grabbing (Prohibition) Act, 2010. The Assam Land Grabbing (Prohibition) Act, 2010 (‘2010 Act’) has been enacted with the avowed objective of arresting and curbing unlawful activity of land grabbing which is adversely affecting public order. Land Grabbing as defined under section 2(e) of the 2010 Act has been specifically made a penal offence under section 4. 5. In State of Assam, In re., (2018) 2 GLR 313, a Division Bench of this court had examined in detail the provisions of the 2010 Act. The broad objective of the penal provision is indicative of the legislative intent to punish those who are connected with the offence of the land grabbing directly or indirectly. As per section 7, Special Tribunals are to be constituted for the purpose of inquiry and trial of cases of land grabbing. It was noticed that jurisdictional court of District and Sessions Judge has been designated as Special Tribunal which would include the court of Jurisdictional Addl. District and Sessions Judge. 6. Powers and functions of Special Tribunals are dealt with in section 8. Under sub-section (1), Special Tribunals have been conferred jurisdiction to try all cases arising out of any alleged act of land grabbing or with respect to the ownership and title or lawful possession of the land allegedly grabbed, either before or after commencement of the 2010 Act. Provisions of sections 8(2) and 8(3) are relevant and are extracted hereunder: “8. (2) The Special Tribunal may, either suo motu, or on application made by any aggrieved person or any 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. (3) The Special Tribunal, 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 in the interest of justice required and any other relevant matter involved in the case: Provided that the Special Tribunal shall not take cognizance of any such case without hearing the petitioner or the aggrieved person, as the case may be.” 7. Sub-section (4) of section 8 says that notwithstanding anything contained in the Civil Procedure Code (‘CPC’), any case of land grabbing or the relatable issue of determination of title, ownership, possession, etc., shall be triable in the Special Tribunal. As per sub-section (6), Special Tribunal shall frame charges and try all offences punishable under the 2010 Act after determination of civil liability. Sub-section (8) gives a timeline for disposal of a trial under the 2010 Act, which should be within 12 months of institution and 6 months after framing of charge. 8. Section 10 lays down the procedure to be followed by the Special Tribunals. Section 10(2), which is relevant, is as under: “10. (2) After taking cognizance of a case under sub-section (2) of section 8, the Special Tribunal shall try and dispose of the civil liability at first and decide and pass order as to the title, ownership and lawful possession of the grabbed land whether before or after the commencement of this Act as it deems fit. After completion of the civil proceeding, if the Special Tribunal decides and pass order that the land in question has been grabbed, the Special Tribunal may order that the possession of the land be restored to the person whose land has been grabbed after evicting the land grabber or any other person who may be in possession of the land, if necessary by use of such force as may be required for the purpose: Provided that execution of the order for restoration of the possession of the grabbed land shall not be made till expiration of the period of appeal provided under section 13 of the Act. If within a reasonable time after the expiry of the appeal period no order of stay of execution has been received from the Special Court or produced before the Special Tribunal by any of the parties to the case, the Special Tribunal shall proceed for execution of its order and simultaneously frame charge against the land grabber to prosecute him for the alleged act of land grabbing: Provided further that in the event of preferring an appeal from the order of the Special Tribunal before the Special Court where stay of execution of the order has been made by the Special Court, the Special Tribunal shall not further proceed in the proceeding to prosecute the land grabber till final disposal of the appeal by the Special Court: Provided also that after hearing the appeal, if the Special Court decides the appeal against the alleged land grabber, in that event charge for prosecution against the land grabber, shall be framed by the Special Tribunal and proceed with the criminal proceeding for prosecution of the land grabber.” 9. Under section 11, in a proceeding relating to land grabbing, presumption would be that the accused is a land grabber and the burden of proving that the land was not grabbed would be on the accused. 10. In State of Assam (supra), the Division Bench examined the scope of determination of civil liability and observed that the purpose of the 2010 Act is to punish the land grabber. Principal object of the 2010 Act is not to adjudicate right, title or possession over the land in question. Therefore, by its very nature, such determination of civil liability has to be of a summary nature and cannot partake the character of a full-fledged civil suit, which is ordinarily a long drawn affair which would frustrate the very purport and object of the 2010 Act. Explaining the rationale for taking the said view, Division Bench held that this is because the alleged land grabber had not approached the civil court for declaration of his right, title, interest or possession over the land in question; it is only when he is prosecuted as a land grabber that he takes up the plea of better claim over the land in question as his defence. It was held, thus: “From a conjoint reading of the various provisions of the 2010 Act, what is discernible is that the main object of the 2010 Act is to protect the owner and possessor of the land from unlawful land grabbing and to punish the criminal land grabbers. The 2010 Act seeks to prohibit and punish land grabbing, which has now become a menace in the State. It is also seen that if the alleged land grabber claims or puts up a defence of proprietary right or ownership or possessory right over the land in question, then the civil liability would be adjudicated first and if he fails to establish any such right, then criminal proceeding for prosecution of the land grabber would recommence. Thus, as per the scheme of the 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. If in this proceeding, the alleged land grabber takes up the defence of ownership, possession or better claim over the land in question, the Special Tribunal shall first determine that question and keep the criminal trial in abeyance till such determination. However, we have to bear in mind that the principal object of the 2010 Act is not to adjudicate right, title or possession over the land in question. Therefore, by its very nature, such determination of civil liability has to be of a summary nature and cannot partake the character of a full fledged civil suit, which is ordinarily a long drawn affair, thereby frustrating the very purport and object of the 2010 Act. This is so because the alleged land grabber had not approached the civil court for declaration of his right, title, interest or possession over the land in question; it is only when he is prosecuted as a land grabber that he takes up the plea of better claim over the land in question as his defence. It is for facilitating a smooth criminal trial, that the above defence, if taken, would be taken up and determined first in a summary manner having regard to the mandate of the 2010 Act. It is for facilitating a smooth criminal trial, that the above defence, if taken, would be taken up and determined first in a summary manner having regard to the mandate of the 2010 Act. Thus, the Legislature did not intend to prohibit proceeding of 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 as discussed above. In that view of the matter, the procedure prescribed in section 10(2) of the 2010 Act cannot be said to be unconstitutional being violative of articles 14 and 21 of the Constitution of India. The procedure prescribed cannot also be said to be hit by the protection under article 20(2) of the Constitution of India. Under the provisions of the 2010 Act, as discussed above, the criminal trial would be postponed or kept in abeyance till determination of the civil liability in a summary manner, if taken up as a defence plea by the accused having regard to the requirement of section 11 whereby and where under presumption would be that land grabbing had taken place and burden would be on the accused to prove otherwise.” 11. One of the questions referred to and discussed in the aforesaid judgment was whether police or investigating agency is empowered to file charge sheet in connection with alleged act of land grabbing under the 2010 Act and whether the Special Tribunals created under the 2010 Act have the power to take cognizance of such offence of land grabbing. Division Bench dissected this question into two parts, viz., the first part relating to the competence of the police or any investigating agency to file charge sheet in connection with an alleged act of land grabbing since there is no such provision in the 2010 Act for filing charge sheet. The second part of the question was whether a Special Tribunal would be competent to take cognizance of an offence of land grabbing committed solitarily or in conjunction with offence under other penal statutes like the Penal Code, 1860. The first part of the question is relevant to the present case. Referring to section 8 of the 2010 Act, the Division Bench held as under: “22. This brings us to the third question. Question No. (iii) has got two parts. The first part of the question is relevant to the present case. Referring to section 8 of the 2010 Act, the Division Bench held as under: “22. This brings us to the third question. Question No. (iii) has got two parts. The first part relates to competence of the police or any investigating agency to file charge sheet in connection with an alleged act of land grabbing since there is no such provision in the 2010 Act for filing charge sheet. The second part of the question relates to competence of a Special Tribunal constituted under the 2010 Act to take cognizance of an offence of land grabbing committed solitarily or in conjunction with offences under other penal statutes like the Penal Code, 1860. 22.1 We may address the first part of question No.(iii) first. Under section 7 of the 2010 Act, a Special Tribunal has the jurisdiction to enquire into any alleged act of land grabbing and trial of cases and while doing so, it has the power to determine ownership, title or possession of the land grabbed. Section 8(1) of the 2010 Act clearly provides that every Special Tribunal shall have power to try all cases arising out of any alleged act of land grabbing or with respect to title or possession of the land grabbed whether before or after commencement of the 2010 Act. 22.2 As per sub-section (4) of section 8, notwithstanding anything contained in the Code of Civil Procedure, 1908 and the Code of Criminal Procedure, 1973, any case in respect of an alleged act of land grabbing or incidental determination of title or possession of any land grabbed shall be triable in the Special Tribunal. Sub-section (6) of section 8 is relevant and is extracted hereunder: (6) Notwithstanding anything contained in the Code of Criminal Procedure, 1973, it shall also be lawful for the Special Tribunal to frame charge and try all offences punishable under this Act, if in the opinion of the Special Tribunal it is so necessary after delivery of its decision and other in the civil liability where prima facie it appears to the Special Tribunal that a particular person or a group of persons are responsible for commission of an offence of land grabbing punishable under this Act. 22.3 Thus, from a careful analysis of sub-section (6) of section 8 of the 2010 Act, it is quite clear that the Special Tribunal has the jurisdiction to frame charge and thereafter try all offences punishable under the 2010 Act. Question of framing of charge will only arise after the Special Tribunal carries out enquiry and comes to a prima facie satisfaction that a triable offence is made out. While doing so, the Special Tribunal will be guided by section 11 of the 2010 Act as per which once cognizance is taken, the Special Tribunal shall presume that the person, who is alleged to have grabbed the land, is a land grabber and the burden of proving that the land has not been grabbed by him shall be on such person. Reverting back to section 7 of the 2010 Act, it is obvious that Special Tribunals are constituted for the purpose of enquiry into acts of land grabbing and trial of such cases. 12. After analyzing the aforesaid provisions in conjunction with sections 7, 8, 11 and 12 of the 2010 Act, the Division Bench held that there is no role for the police or any investigating agency in a case of land grabbing. The authority competent to enquire into and try the offence of land grabbing is the Special Tribunal. It is for the Special Tribunal to frame charge and thereafter try all offences punishable under the 2010 Act. If any case of land grabbing is pending before the police or other investigating agency at the commencement of the 2010 Act, such case would stand transferred to the jurisdictional Special Tribunal. It was categorically held by the Division Bench that when it is a case of land grabbing, exclusive jurisdiction is vested in the Special Tribunal. Relevant portion of aforesaid judgment dealing this aspect of the matter is extracted under: “22.4 As per section 12 of the 2010 Act, any case pending before any court or other authority immediately before coming into force of the 2010 Act which involves any act of land grabbing, shall stand transferred to the Special Tribunal within whose jurisdiction the alleged grabbed land is situated. 22.5. 22.5. Thus, if the provisions of sections 7, 8, 11 and 12 of the 2010 Act are read in conjunction, what emerges is that in case of an offence of land grabbing and the related offences as described in section 5 of the 2010 Act, the authority competent to enquire into and try the offence of land grabbing is the Special Tribunal. It is for the Special Tribunal to frame charge and thereafter try all offences punishable under the 2010 Act. Going by the language of section 12, if any case involving any act of land grabbing was pending before the police or other investigating agency at the commencement of the 2010 Act, such case would stand transferred to the jurisdictional Special Tribunal. Having regard to the non-obstante clause employed in sub-section (4) of section 8 of the 2010 Act, it is evident that when it is a case of land grabbing, exclusive jurisdiction is vested in the Special Tribunal. In such a scenario, role of the police or any investigating agency is ruled out. Therefore, answer to this part of the question, to our mind, does not arise at all.” 13. In the light of the above, it is evident that the Officer in-Charge of Borboruah PS Case No. 143/2015 had no jurisdiction to enquire into and investigate the offence of land grabbing. He ought to have placed the FIR before the Special Tribunal, in which event, the Special Tribunal would have treated the same as a complaint under section 8(2) of the 2010 Act. Failure to do so has vitiated the entire investigation by the investigating officer. Therefore, the final report filed by the police was non-est in the eye of law. Addl. Sessions Judge, Dibrugarh also failed to appreciate this aspect of the matter and erroneously accepted the final report submitted by the Officer in-Charge when the Special Tribunal alone had the exclusive jurisdiction to enquire into, investigate and try a case of land grabbing. 14. For the aforesaid reasons, impugned order dated 24.9.2015 is set aside. Sessions Judge, Dibrugarh acting as the Special Tribunal shall proceed with the Assam Land Grabbing Case No. 6/2015 in accordance with the provisions of the 2010 Act as explained by the Division Bench in State of Assam (supra). 14. For the aforesaid reasons, impugned order dated 24.9.2015 is set aside. Sessions Judge, Dibrugarh acting as the Special Tribunal shall proceed with the Assam Land Grabbing Case No. 6/2015 in accordance with the provisions of the 2010 Act as explained by the Division Bench in State of Assam (supra). Petitioner to appear before the Special Tribunal on 1.11.2018 at 10.30 am whereafter, the Special Tribunal shall proceed with the matter in accordance with law. Writ petition is accordingly allowed but without any order as to costs.