The prospect of special courts set up to try land grab cases filed after AIADMK came to power seems in doubt following a court order which questioned the action of the special Anti-Land Grabbing Cells constituted by the police. Last week, a specially constituted bench of the Madras high court had restrained the cells from filing any chargesheet before two special courts formed so far. There are another 23 such courts proposed to be formed, but they will now have to await the final outcome of the case. But, from what was argued before the bench and what was filed by parties before it, it appears that there is a basic flaw in the state's campaign against land-grabbing . That is, it is yet to be defined as an offence. In an act of putting the cart before the horse, the government formed special investigation cells and special courts even before enacting a law, which would have contained the definition of the offence. "There is no such offence as 'land grabbing' in the Indian Penal Code, and in the absence of a special legislation these cells and courts will operate only in vacuum," said an advocate.

There are several other infirmities too. The government order dated July 28, 2011 said land grab offences committed under a particular regime between 2006 and 2011 would be probed and tried. "It is discriminatory to limit the illegality of an offence to a particular period or group," a senior jurist said.

The 25 special courts announced in the GO of August 11, 2011 are magistrate courts, but in scores of cases the offences are beyond the scope of magisterial forums. One petitioner before the high court, P A Murugesan of Salem had submitted a randomly selected list of 15 land grab cases, which could be tried by the judicial/metropolitan magistrates. However, they would have no power to award punishment . There is another set of seven cases which cannot be taken cognizance of by these special courts.

Chief minister J Jayalalithaa's stated objective of returning the lands to their owners cannot be achieved through this process, because these special courts are criminal courts. It is needless to state that the culmination of criminal proceedings is punishment/ imprisonment of the offender and not restoration of property to its owner.

However, reiterating the necessity of a comprehensive law to curb the menace of land-grabbing , experts point to the Andhra Pradesh model. The Andhra Pradesh Land Grabbing (Prohibition) Act, brought out in 1982, first defines the offence. "Land grabbing means every activity of grabbing any land whether belonging to government or endowment or Wakf or private person, 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 licence agreements or any other illegal agreements in respect of such lands or to construct unauthorised structures therein for sale or hire or give such lands to any person on rental or lease..."

Unlike the special magisterial courts in Tamil Nadu, the special land grab courts in Andhra Pradesh were of sessions-grade and they had powers to entertain cases of criminal or civil, or both. While Section 9 of the Act gave the powers of a civil and sessions court to them, there was an appeal provision too.

On its part, the high court addressed a letter to the state home secretary on August 9, 2011, conceding that the court had drafted a notification on these special courts which have no legal ambit.