While stating that the powers can be abused by police, the Apex Court in a learned, laudable, logical, landmark and latest judgment titled Government of Tamil Nadu & Ors v R Thamaraiselvam etc in Civil Appeal Nos. 1580-1608 of 2022 and cited in 2023 LiveLaw (SC) 400 that was pronounced as recently as on May 4, 2023 in the exercise of its civil appellate jurisdiction has upheld the decision of the Madras High Court to set aside the 2011 Tamil Nadu’s government order wherein it had constituted Land Grabbing Special Cells without defining land grabbing cases. We must note that while quashing and setting aside the order, the Apex Court had also observed that the State Government is at liberty to bring any appropriate legislation along the lines of the “A.P. Land Grabbing (Prohibition) Act, 1982” or better legislations. The Bench of Apex Court comprising of Hon’ble Mr Justice MR Shah and Hon’ble Ms Justice BV Nagarathna minced just no words to hold categorically that, “In absence of any guidelines and/or definition as to which cases can be said to be land grabbing cases, it gives unfettered and unguided and arbitrary powers to the police to treat any land case as a land grabbing case which will be investigated by the Anti-Land Grabbing Special Cell.” The present appeal was filed by the State of Tamil Nadu against the Madras High Court’s decision to quash the orders of the government which formed the special cell to tackle land grabbing in the State.
At the very outset, this brief, brilliant, bold and balanced judgment authored by Hon’ble Mr Justice MR Shah for a Bench of the Apex Court comprising of himself and Hon’ble Ms Justice BV Nagarathna sets the ball rolling by first and foremost putting forth in para 1 that, “Feeling aggrieved and dissatisfied with the impugned common judgment and order dated 10.02.2015 passed by the High Court of Judicature at Madras in Writ Petition No. 18872/2011 and other allied writ petitions, by which the High Court has allowed the said writ petitions and has quashed G.O. (Ms.) No. 423, Home (Police XI) Department dated 28.07.2011 (hereinafter referred to as ‘G.O. No. 423 dated 28.07.2011’) as well as G.O.(Ms.) No. 451, Home (Court III) Department dated 11.08.2011 (hereinafter referred to as ‘G.O. No. 451 dated 11.08.2011’), the State of Tamil Nadu has preferred the present appeals.
1.1 Criminal Appeal No. 275/2022 has been preferred challenging the impugned order dated 04.11.2020 passed by the High Court of Judicature at Madras in Criminal O.P. No. 23641/2019, by which the High Court has directed to transfer the case being C.C. No. 2 of 2012 from the Court of Special Judicial Magistrate, Land Grabbing, Erode to the file of Judicial Magistrate-II, Erode.”
To put things in perspective, the Bench then envisages in para 2 that, “Vide G.O. No. 423 dated 28.07.2011, the State of Tamil Nadu sanctioned formation of 36 Anti Land Grabbing Special Cells in Tamil Nadu with one cell each at the State Police Headquarters, 7 Commissionerates and 28 Districts to deal with the Land Grabbing Cases in the State. Consequent upon the said G.O., another G.O. bearing No. 451 dated 11.08.2011 came to be issued and the Land Grabbing Cases were ordered to be transferred to the Special Courts which were constituted exclusively to deal with the Land Grabbing Cases. The aforesaid G.Os were the subject matter of the writ petitions before the High Court.
2.1 By the impugned common judgment and order, the High Court has set aside G.O. No. 423 dated 28.07.2011 by holding that the same does not lay down any yardstick or guideline to pick and choose and select particular cases against particular persons said to have indulged in land grabbing and in the absence of definition of the word/phrase “Land Grabbing”, discretion is vested with the police personnel attached to the Anti-Land Grabbing Cell to pick and choose against whom they want to register FIR and proceed with the investigation and on account of the same, the possibility of abuse and misuse of power cannot be ruled out. While quashing and setting aside G.O. No. 423 dated 28.07.2011, the High Court has also observed that the State Government is at liberty to bring any appropriate legislation along the lines of the A.P. Land Grabbing (Prohibition) Act, 1982 or better legislations de hors the result of the writ petitions. Consequently, the High Court has also quashed and set aside G.O. No. 451 dated 11.08.2011. The impugned common judgment and order passed by the High Court is the subject matter of present Civil Appeals.”
While referring to the G.O. No. 423 dated 28.07.2011, the Bench then disclosed in para 5 that, “By the aforesaid G.O., the Government of Tamil Nadu has constituted/formed 36 Anti Land Grabbing Special Cells to deal with the land grabbing cases. However, it is required to be noted that the type of cases can be said to be land grabbing cases has not been defined and/or mentioned in the said G.O. Therefore, it will be at the discretion of the concerned police officers to treat and/or consider any case relating to land as land grabbing case, which shall be investigated by the Anti-Land Grabbing Special Cell, rather than by the police officers under the Cr.P.C. It is required to be noted that as such there is no Anti-Land Grabbing Act in the State of Tamil Nadu like A.P. Land Grabbing (Prohibition) Act, 1982 or Karnataka Land Grabbing Prohibition Act, 2011 or similar Land Grabbing Prohibition Acts in other States. It is required to be noted that in the other Land Grabbing Prohibition Acts applicable in the States of Andhra Pradesh, Karnataka, Gujarat and Assam, “Land Grabbing” is specifically defined. Even the term “Land Grabber” is defined. For example, in Andhra Pradesh Land Grabbing (Prohibition) Act, 1982, “Land Grabber” and “Land Grabbing” are defined as under:
“land grabber” means a person or a group of persons who commits land grabbing and includes any person who gives financial aid to any person for taking illegal possession of lands or for construction of unauthorised structures thereon, or who collects or attempts to collect from any occupiers of such lands rent, compensation and other charges by criminal intimidation, or who abets the doing of any of the above mentioned acts; and also includes the successors in interest.
“land grabbing” means every activity of grabbing of any land (whether belonging to the government, a local authority, a religious or charitable institution or endowment, including a wakf, or any other private person) by a person or group of persons, without any lawful entitlement and with a view to illegally taking possession of such lands, or enter into or create illegal tenancies or lease and licences agreements or any other illegal agreements in respect of such lands, or to construct unauthorised structures thereon for sale or hire, or give such lands to any person on rental or lease and licence basis for construction, or use and occupation, of unauthorised structures; and the term “to grab and” shall be construed accordingly.”
Most significantly, most forthrightly and most remarkably, the Bench then minces just no words to propound in para 6 that, “Insofar as the State of Tamil Nadu is concerned, it is an admitted position that there is no specific enactment and/or Act to deal with land grabbing cases, like Andhra Pradesh Land Grabbing (Prohibition) Act, 1982 and the Anti-Land Grabbing Special Cells have been formed by G.O. No. 423 dated 28.07.2011 to exclusively deal with the land grabbing cases. In absence of any guidelines and/or definition as to which cases can be said to be land grabbing cases, it gives unfettered and unguided and arbitrary powers to the police to treat any land case as a land grabbing case which will be investigated by the Anti- Land Grabbing Special Cell. Even a dispute between two private persons which may be under the Specific Relief Act and/or Transfer of Property Act may be considered as a land grabbing case like in Criminal Appeal No. 275/2022 in which a Civil Suit was pending for specific performance which was dismissed for non-prosecution and thereafter the defendant filed a complaint/FIR for the offences under the IPC. Therefore, as such, it is rightly held and observed by the High Court that in absence of any specific guideline and/or definition of “land grabbing cases,” such powers can be abused or misused and such powers can be said to be exercised arbitrarily. Therefore, the High Court has rightly set aside G.O. No. 423 dated 28.07.2011 with liberty to the State Government to bring any appropriate legislation on the lines of A.P. Land Grabbing (Prohibition) Act, 1982 or better legislations after defining and/or providing the guidelines as to which offences can be said to be “land grabbing cases”. Therefore, the impugned judgment(s) and order(s) passed by the High Court does/do not call for any interference by this Court.”
As a corollary, the Bench then directs in para 7 that, “Under the circumstances, Civil Appeals preferred by the State deserve to be dismissed and are accordingly dismissed. However, we reiterate that if the State Government is so conscious and/or interested in taking action against land grabbers, it will be open for the State Government to bring an appropriate legislation with the clear definition of “land grabber” and “land grabbing” or better legislations with a clear definition of “land grabbing”, “land grabber” and “land grabbing cases” and the present order shall not come in their way to enact such legislation and/or better legislations.”
Finally and as an inevitable fallout, the Bench then concludes by directing in para 8 that, “In view of the above, Criminal Appeal No. 275/2022 which was with respect to private persons by which the Criminal case between the parties is ordered to be transferred to the regular Court from the Special Court (Land Grabbing) deserves to be dismissed and is accordingly dismissed.”
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