The Gujarat Land Grabbing (Prohibition) Act, 2020 (Hereafter, referred to as "the Act" for convenience) has been enacted by the Government of Gujarat by notifying the same in the Gujarat government Gazette/extraordinary volume LXI dated 09/10/2020 and the same has been brought into force from 29/08/2020. From the reading of the Act, it is clear that it is a special law providing civil and criminal remedies and liabilities under one roof with regard to the act of land grabbing. It provides for the establishment of Special Courts for adjudicating the disputes pertaining to land grabbing either by way of criminal prosecution or a civil proceeding (Refer to Section 7). The Act provides for the constitution of a committee to be notified by the state government under the chairmanship of the District Collector which will primarily consider all applications or complaints pertaining to land grabbing. Under Section 9 of the Act, the special court is invested with jurisdiction to decide either suo-motu or any application made by any person or any officer authorized by District Collector to take cognizance and try every case arising out of the alleged act of land grabbing or with respect to the ownership and title to or lawful possession of the land grabbed. The Special Court has the power to refer the complaint or application to the committee for its finding. Section 15 of the Act gives an overriding effect to this special law over any other law for the time being in force or custom, usage or agreement or decree or order of the court or any other tribunal or authority. The Act contains several provisions which are controversial and which will have to pass the test of constitutional validity.
The Act not only applies to any government or municipal land grabbed by any person but it also applies to a private land grabbed by any other person. In short, it would apply in respect of rival claims made by two private individuals against each other in respect of ownership, title or possession of the land where one of them may claim that the other has grabbed the land without any title or ownership or lawful reason for possessing the land.
The most controversial provisions of the Act are Section 4 (2), Section 9, Section 11, Section 15 and Section 17. In order to appreciate the constitutionality of the aforesaid provisions at least the following definitions are required to be kept in mind:
Section 2(c): "land" includes rights in or over land, benefits to arise out of land and buildings, structures and other things attached to the earth or permanently fastened to anything attached to the earth;
Section 2(d): "land grabber" means a person 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 unauthorized 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;
Section 2(e): "land grabbing" means every activity of land grabber to occupy or attempt to occupy with or without the use of force, threat, intimidation and deceit, any land (whether belonging to the Government, a Public Sector Undertaking, a local authority, a religious or charitable institution or any other private person) over which he or they have no ownership, title or physical possession, without any lawful entitlement and with a view to illegally taking possession of such land or creating illegal tenancies or lease or license, agreements or transfer or sale or by constructing unauthorized structures thereon for sale or hire or use or occupation of such unauthorized structures and the term "grabbed land" shall be construed accordingly;
The above-referred definitions of the term "land grabber" and "land grabbing" are vague and casts their net so wide to cover the persons who are in settled possession of the land since long. Moreover, the term 'land grabber' has been defined with reference to the term 'land grabbing' which again refers to 'land grabbers' in a circuitous way so as to make it difficult to understand its true meaning and scope. The term 'land grabber' covers within its definition a successor in interest also who may or may not be aware of the defect or infirmity in the title of the land or with regard to the possession thereof.
Section 3 of the Act is in the nature of a declaration that the land grabbing in any form is prohibited, made unlawful and it is an offence punishable under the Act. Meaning thereby it will have to be applied prospectively from the date when the Act was brought into force and therefore naturally it cannot be applied to any act of encroachment, land grabbing or to persons in settled possession without lawful title over the land prior to the enforcement of the Act. However, surprisingly section 4(2) declares that any person who owns or after the commencement of this act continues is to be in occupation otherwise than as a lawful tenant, of a grabbed land shall be guilty of an offence under this Act. The land grabber upon conviction is liable to be punished with imprisonment for a term which shall not be less than ten years but may be extended to fourteen years and with fine which may be extended to the Jantri Value of such properties.
Section 4 (2) covers within its sweep a person who continues is to be in the occupation or who retains his possession of the land which might have commenced long back prior to the enactment of the Act and make them liable for the commission of an offence. The natural corollary of the above said provision is that a person who is in settled possession but having no document of title or ownership will have to voluntarily surrender his possession of the land to the lawful owner of the land immediately failing which he can be prosecuted and punished for an act which was innocent prior to the enactment of the Act.
Section 9 also provides for taking an action by the Special Court in respect of the land grabbed whether before or after the commencement of the Act. Thus, the Act has retrospective applicability and it makes the past innocent act as an offence by post facto law which violates the fundamental rights guaranteed under Article 20 of the Constitution of India. Article 20 clearly prohibits retrospective effect to be given to a criminal law creating an offence.
- • The provisions of the Act more particularly Sections 4, 9, 11 and 15 infringe the fundamental rights of a person concerned under Articles 14, 19 and 21 of the Constitution of India.
- • The provisions of the Act are repugnant to and in conflict with the provisions of Section 27 read with Articles 65,111 and 112 of the Schedule to the Limitation Act, 1963. Section 27 read with Article 65 of the Limitation Act extinguishes the right of a lawful owner in respect of land or immovable property if within the time stipulated therein the owner fails to assert his right to have possession.
- • Further, by the aforesaid provisions of the Act is contrary to the well-entrenched jurisprudential concept of a person in settled possession having the right to protect his possession and insist for his dispossession only in accordance with the due process of law.
- • The provisions of the Act are also in conflict with the provisions of Public Premises (Eviction of Unauthorized Occupants) Act, 1971- Central Law and Public Premises (Eviction of Unauthorized Occupants) Act, 1972- State law and other similar laws that provide for a summary procedure of eviction of an unauthorized occupant with a detailed procedure of issuance of notice for eviction, its adjudication by the competent officer and providing an appeal against the order of the competent authority. No such just fair and reasonable procedure is contemplated under the Act and hence it would violate the fundamental rights of the person concerned under Article 21 of the Constitution of India.
- • Because of the provisions of the Act all street vendors occupying municipal lands and all hutment dwellers occupying government or even a private-lands since long become offenders by a stroke of a pen by which the impugned provisions of Act are made. By such outrageous provisions, all such persons are rendered liable for a very stringent criminal liability of punishment of imprisonment for not less than 10 years extending up to 14 years. This kind of legislation clearly invades the right to life a fundamental and basic human right of the poor masses of the State of Gujarat without any lawful justification. The Act is a retrogressive piece of legislation contrary to the constitutional morality enshrined in the Preamble and the Directive Principles of the State Policy of the Constitution of India.
- • The provision of the Act is manifestly arbitrary since the State legislature has failed to appreciate that there are sufficient legal provisions available under the Gujarat Land Revenue Code, Municipal Corporation Act, Municipality and Panchayat Acts and Public Premises Eviction Act for the removal or eviction of an unauthorized occupant of the government lands. Further, in respect of a person who is in settled possession of private land, there is no lawful justification or reason to create the act of occupying the private land as an offence and provide a summary procedure of adjudication by the Special Court. Land or property disputes between two private individuals have many legal contours viz. a person in occupation of land or property after the expiry of the lease or a license containing a renewal clause, usufructuary mortgagee retaining possession of land for sufficient reason, a person in occupation and possession of the land based on an inchoate document of title or having an agreement for sale registered or unregistered and possessing the land in pursuance of the part performance of an agreement so on so forth. Thus, it is highly irrational, illegal and unconstitutional to create a criminal liability on such a person with corresponding summary adjudication of civil rights of such private individuals.
- • The Land Revenue Code and the provisions of the municipal laws in many cases confer discretion to the authorities under to regularize unauthorized occupancies of a government or municipal land subject to certain conditions or as per the policy of the government. The Act has divested all such competent authorities under the revenue and municipal laws of their discretion to regularize unauthorized occupancy in accordance with the policy of the State.
- • The Act has failed to take note of the ground reality at village and taluka levels wherein the notified village sites (Gamtal land) the residents might have settled and constructed their houses more than hundred years ago without a lawful title or a document of ownership. If one examines these ground realities in the rural area, on the village sites more than 60 of the residents may not be having any document of title or ownership and their claim over the properties are simply based on their ancestors having settled and constructed the houses. When a city survey is introduced in respect of village sites under the Land Revenue Codes, there is a procedure for recognizing their possessory rights and to exalt the possessory rights into the full-fledged the ownership rights. By virtue of the Act, any occupation or possession of a government or municipal land per se is an offence and there is no provision under the Act which provides for exemption from the provision of the Act or provides an exception for such situations.
- • The Act has failed to notice the distinctions between an encroachment of a recent time and occupation of a government, municipal or private land since long.
- • The provision of the Act has been giving an overriding effect under Section 15 over all other laws for the time being in force, or custom or usage or agreement or decree or order of a court or any other tribunal or authority. This provision fails to pass the test of constitutionality since something which had already agreed to by the parties or any legal right created by virtue a decree of the court or tribunal or authority is sought to be nullified. So irrespective of any order of authority regularizing the occupancies of government land lawfully made in the past or decree of declaring a person as owner by adverse passion, the provision of the Act will apply and the person who was not a lawful owner will incur civil and criminal liabilities under the Act.
- • The provision of Section 11 apparently creates a reverse burden of proof in respect of private land also. But if the aforesaid provision is closely read it does not change the onus of proof which reflects poor drafting.
- • A transaction relating to an alienation of land grabbed even though such alienation might have taken place much before the commencement of the Act, it has been made null and void. Section 17 has also retrospective operation, therefore, cannot be held to be legal or constitutional.
- • The provision relating to a minimum of ten years imprisonment upon conviction and recovering price at Jantri rate is highly disproportionate and violates the doctrine of proportionality which is now fully established as part of our constitutional jurisprudence.
Besides the aforementioned legal and constitutional issues, the implementation of the Act has many serious practical difficulties. It is interesting to note that despite all flaws mentioned above the state Government has started enforcing Act and prosecuting people without creating the corresponding infrastructure of Special Courts. The Act would require the establishment of special courts in every district. Secondly, the Collector of every district who is already overburdened with the revenue administration, having extensive jurisdiction under the provision of Code of Criminal Procedure, functioning in the capacity of the District Magistrate under the preventive detention laws, carrying out election duties and many other functions under other laws will be flooded with all such litigations pertaining to even private individuals which would create havoc in the functioning of the Collectorates. Considering the nature of the provisions of the Act the Collector will not be in a position to carry out other functions except examining all types of grievances pertaining to private land-property disputes and disputes between government and private individuals. Therefore, the provisions of the Act are not even in the interest of general revenue, civil and criminal administration.
The Rules framed under the Act are also ultra vires and unconstitutional as the Rules do not specifically provide for giving an opportunity to the person affected by the inquiry to be conducted under Act by the inquiry committee. Rule 5 (10) provides for submission of the final report by Police within 30 days of the registration of the FIR which is absolutely unreasonable as the property and land disputes involve many complex legal and factual issues for which the police authority is inept to conduct the investigation. Even if they are held to have the competence to understand such complex issues, the period of 30 days for investigation is absolutely insufficient and not in tune with section 167 of Criminal Procedure Code which provides for 60 or days 90 days for submitting final report after the registration of the FIR and arrest.
The provisions aforesaid are therefore unconstitutional and liable to be struck down. A careful examination of the provisions of the Act reflects that it is indeed slapdash legislation enacted without proper vision.
Views are personal.
(Author is a Senior Advocate at the Gujarat High Court)