Editor's note: This is the third of a four-part deep dive into the murky world of land legislation in Tamil Nadu, unauthorised constructions and rampant corruption with no government wanting to curb it. Will the courts do the needful?
In 2011, late chief minister J Jayalalithaa swept back to power after five years of the DMK (Dravida Munnetra Kazhagam) government. Her fierce comeback was highlighted by an innocuous government order. This order authorised the setting up of 36 Anti Land Grabbing Special Cells in Tamil Nadu with one cell each at the state police headquarters, seven Commissionerates and 28 districts except Karur, Tiruvannamalai and Nagapattinam districts for a period of one year on a temporary basis.
Jayalalithaa, whose election promise it was to curb land grabbing, allegedly by DMK strongmen in the state, had said this special cell was one of her tools to accomplish her promise. While the claims of widespread land grabbing by the DMK during their regime from 2006-11 are not without basis, Jayalalithaa used these claims also to settle political scores.
Vendetta aside, punishing land grabbers is, in any case, much needed. The way the regime chose to carry out these punishments came under severe scrutiny by the Madras High Court in a judgment delivered in 2015.
In the judgment, the first bench headed by Chief Justice Sanjay Kishan Kaul and Justice M Sathyanarayanan quashed the formation of the land grabbing special cells and deemed their existence void. The bench primarily noted the lack of existence of a clear law on the lines of the Andhra Pradesh Land Grabbing Prohibition Act. But the promise to enact such a law was made by Jayalalithaa.
The then chief minister while replying to the debate on the motion of thanks to the governor's address at the Legislative Assembly in 2011, had indicated that land grabbing and extortion were common problems during the previous regime and many were wrongfully dispossessed of their immovable properties through force and intimidation and the government have decided to take appropriate action and restore such properties to their rightful 55 owners by enacting a new law soon.
In spite of the indication, an Act along the lines of the Andhra Pradesh Land Grabbing (Prohibition) Act, 1982 has not been passed and instead a (governor order) GO No 423 dated 28 July 2011 came into being forming 36 Anti Land Grabbing Special Cells in Tamil Nadu to deal with land grabbing cases along with GO No 451, Home (Court-II) Department dated 11 August 2011 that constituted special courts to deal with such cases.
The composition of these cells was completely reliant on the government order instead of an Act, which drastically reduced the legitimacy of the order. The bench also noted the possible misuse of the power of these cells, which could easily pick and choose which cases had the opposition involved in them and proceed without a preliminary enquiry.
D Nagajothi, superintendent of the land grabbing cell in Chennai said this was impossible. "We always conduct preliminary enquiries irrespective of the accused’s political leanings," she says.
P Wilson, the lawyer who had challenged the special cells in 2014, pointed out the absence of the definition of the word "land grabbing". "By making it a criminal offence, the government has actually used it to their benefit. In a civil offence, the land is given back to those dispossessed of it. But by making it a criminal offence, the government can seize the land," he says.
According to the police standing order 566, the investigation should be impartial. No doubt, police standing orders (PSO) have no statutory force. However, an obligation is cast upon the police personnel to register and investigate the cases in a fair and proper manner and in the event of their failure to adhere to PSO, it is always open to the concerned authority to initiate disciplinary action in accordance with law.
"The impugned Government Order gives unbridled power to Investigating Officers to treat/deem an act as “land grabbing” and initiate action on that basis and in the absence of any guideline whatsoever provided in the impugned Government Order and therefore, it is to be held as arbitrary and violative of Article 14 of the Constitution of India," the judgment said.
Wilson says complete discretion is vested with the police personnel attached to the Anti Land Grabbing Cell to pick and choose against whom they want to register First Information Reports and proceed with the investigation and on account of the same, the possibility of abuse and misuse of power cannot be ruled out.
Such misuse is evident in the case of Janaki, whose land in Madhavaram Milk Colony was collateral for an education loan for her son. After seven years, she managed to register the four acres of patta in her name. But in 2013, a few men claimed they had bought it in the 1990s and reclaimed the land. Slowly, more and more people claimed their ownership over the land and despite many complaints to the councillor, the son of an AIADMK minister, no action was taken.
When Janaki went to the police, they had pushed her to file the case in court and informed her that the police could do nothing about it. This took another two years, by which time she had received an expatriate order. "The day of the final hearing, our lawyer refused to show up. So the case is still in court," she says.
"The cells were constituted to make life easier for us, so we thought. It meant immediate relief and action against land grabbers. But what instead ended up happening were years of court cases," says Janaki.
"Special cells are set up primarily for speedy justice, to handle cases that would normally overload other investigating agencies stuck in long-drawn, far more serious cases," says Wilson. "But clearly, these cells have rarely registered FIRs."
As per the counter affidavit filed by the AIADMK government, approximately 96,000 complaints were received as on 2016 and after scrutinising the documents and careful enquiry only approximately 5,980 cases were registered and 17,870 complaints have been closed citing various reasons.
Right after the formation of the special cells in 2011, one of the first and most highly publicised arrests was carried out, allegedly without a preliminary enquiry, because it involved Chepauk DMK MLA and Chennai strongman J Anbazhagan.
"I was arrested on grounds of being a mediator in a case of land grabbing in Tirupur. When we filed a case with the Supreme Court, the court directed the cell to file a FIR and conduct a preliminary enquiry first," says Anbazhagan.
Anbazhagan quotes the case of Kamarajan, an AIADMK (ruling All India Anna Dravida Munnetra Kazhagam) functionary who encroached on a DMK functionary’s land and refused to clear the place. "We lodged a case and were told to go to court. We were also told that we have no chance of getting any relief whatsoever," he says.
In 2015, former AIADMK MLA of Thiruvottiyur K Kuppan had allegedly grabbed 30 acres of land allotted to 1,228 members of the fishing community in Madhavaram Taluk in Thiruvallur district. The land allotted during the 1995 AIADMK regime and the allegation was that Kuppan had grabbed the land during the DMK regime and got away with it as he was from the ruling party post-2011 when the cell was constituted.
A case was lodged in the high court by six residents in the area. "This is a huge misunderstanding and a false case to defame me. The land was allotted by Amma in 1995 to rehabilitate those in villages affected by sea erosion and a government order was issued. The DMK had encroached on them during the 2006-11 regime and blamed it on the AIADMK for not having furnished proper documents," says Kuppan.
But what is the land being used for currently? "Well, many of them had left the area during the DMK regime so some 300 people are left. The rest of the area party functionaries have occupied," he says. This occupation is a clear violation of the AIADMK government order itself. "If it is unused, we have to use the land," he says.
When asked if AIADMK functionaries were particularly overlooked while lodging land grabbing cases, Kuppan says, "Amma doesn’t let loyalty come in the way. She will scold her children if they do something wrong. But if DMK has scorned her, you can’t expect her not to scold them."
Watch this space on Thursday for the fourth and final part where we will see how illegal constructions are destroying Tamil Nadu's water sources.
Updated Date: Aug 16, 2017 10:33 AM