MUHAMMAD ALI vs IVTH ADDITIONAL SESSIONS JUDGE, HYDERABAD and 8

ORDER

1. ' FAISAL ARAB, J.---The applicant is owner of survey number 101. He filed a complaint under section 5 of Illegal Dispossession Act, 2005 against his neighboring Zamindars i.e, private respondents who own survey number 138. It is alleged that they have encroached upon part of applicant's survey number 101.

2. ' This Criminal Revision Application has been filed against the order of IV-Additional Session Judge, Hyderabad, who summarily dismissed he application of the applicant after holding that proceedings under the Illegal Dispossession Act 2005 could be taken only against such persons who are either land grabbers or members of a qabza group or land mafia.

3. The scope of Illegal Dispossession Act cannot be confined only to persons having antecedent of land grabbers or Qabza Group or land mafia. The applicant cannot be forced to first establish that the person, who has illegally dispossessed him belongs to a group of land grabbers, Qabza Group or land mafia in order to maintain proceedings under Illegal Dispossession Act, 2005. This cannot be the intention of the law makers. In section 3 of the Act, it is provided that no one shall enter upon any property to dispossess, grab, control or occupy it without having any lawful authority to do so, with the intention to dispossess, grab, control or occupy the property from owner or occupier of such property. This section which defines the Criminal Act clearly covers every act of dispossession committed by any person irrespective of the fact whether he commits such act individually or in consort with several other person. It is also not necessary that the accused who has committed the illegal act of dispossession should already be known to be a member of land grabbers or Qabza Group or land mafia. Hence the dismissal of the applicant's application on the reasoning given by the trial Court was not warranted in law. Coming to the merits of the present case, the private respondents in their defence claim that they have not occupied any portion of survey number 101.

4. The claim that the "Bhada land" belonging to irrigation Department which in the "Muhag" of survey number 138 has only been occupied by them.

5. To resolve such rival claims, it is necessary that the Revenue Record should be before the trial Court for its examination. The question whether any portion of survey number 101 or the "Bhada land" in the "Muhag" of survey No,101 has been occupied or encroached upon by the private respondents or not is to be ascertained and in case the answer is in affirmative, only then cognizance of the offence is to be taken. In case the private respondents are in occupation of survey number 138 or the "Bhada land" in the "Muhag" of survey number 138, then obviously no cognizance is to be taken as in such eventuality the question of illegal dispossession of the applicant does not arise, but in case any part of survey No,101 or the "Bhada land" in the "Muhag" of survey No,101 has been occupied by private respondents then certainly it is a case of dispossession.

6. Both the counsel agrees to this legal position. Hence the impugned order dated 3-4-2009 is set aside and the case is remanded back to the trial Court, which after examining the revenue record shall decide whether Survey No,101 or "the Bhada land" in its "Muhag" has been encroached upon by the private respondents and only after answering such question shall decide whether the cognizance of the offence is to be taken or not.

7. ' Let examination of the revenue record be undertaken by the trial Court within a period of two months, so that the matter could be expeditiously decided.

8. ' The Criminal Revision Application No,S-45/2009 stands disposed of in the above terms.'