Grappling With The Gujarat Land Grabbing (Prohibition) Act, 2020

Briefly speaking, it makes past acts punishable offences with retrospective effect (with minimum sentence of 10 years extending upto 14 years and fine, which may extend to jantri value of properties), sets up a high power committee (whose constitution, term, tenure is unknown), blends civil and criminal trials (like never before), sets up a Special Court (that will supposedly follow principles of natural justice and fair play bypassing both CPC and Evidence Act), shifts burden of proof on the accused while taking away right to remain silent and gives finality to decisions of Special Court with no right to appeal. Its provisions are manifestly arbitrary and ostensibly in teeth of Article 20(1), 20(3), 21 of the Constitution.

Let us examine what the Act does.

Retrospective operation of the Act:

Article 20(1) states that no person shall be convicted of an offence except for violation of law in force at the time of its commission. It is settled that a substantive law is presumed to be prospective in operation. The Act does not make the offence of land grabbing per se retrospective explicitly. It however does so by implication through Section 9 (1), which reads as under:

"9(1) The Special Court may, either suo moto or on application made by any person, or any officer authorized by District Collector, take cognizance of and try every case arising out of any alleged act of land grabbing or with respect to the ownership and title to, or lawful possession of, the land grabbed, whether before or after the commencement of this Act, and pass such orders (including orders by way of interim directions) as it deems fit." (emphasis supplied)

Section 9(1) empowers Special Court to try even those acts and offences of land grabbing that would have occurred before commencement of the Act. Let us bear in mind that the Act is essentially a penal statute. Making it retrospective stares at Article 20(1) of the Constitution. Finding justification in treating land grabbing as a continuing wrong would not bestow validity considering the language of section 9(1).

Infringing Right to Silence or just a case of a missing "not"?

Article 20(3) of the Constitution guarantees right against Self-incrimination. It reads as under:

"Article 20(3): No person accused of any offence shall be compelled to be a witness against himself."

180th Report of the Law Commission of India (May 2002) is on Article 20(3) of the Constitution of India and the right to silence. The Law Commission took up the subject suo motu in view of some developments in the UK and other countries diluting right to silence of an accused at the stage of interrogation and in criminal trial proceedings. The Commission examined the change in law in the UK, Australia, USA and China. While dealing with the Indian context, the Commission traced the history of provisions of Cr.P.C noting that Section 342A of Cr.P.C. as introduced in 1955 made it possible for the Accused to testify on his own behalf and also stated that "His failure to give evidence shall not be made the subject of comment by any of the Parties or the Court". The Commission further recorded that section 342(2) of the earlier Cr.P.C. which contained a provision that allowed the Court and the jury (if any) to draw an inference from refusal of an accused to answer questions was dropped from Cr.P.C. of 1973 obviously because of the guarantee under clause (3) of Art. 20 of the Constitution of India which came into force in 1950. The Commission noted that "The provision was dropped presumably because it was contrary to the constitutional protection against self incrimination."

The new provision of the Code of 1973 is section 315(1) which reads as under:

"315. Accused person to be competent witness.—

(1) Any person accused of an offence before a Criminal Court shall be a competent witness for the defence and may give evidence on oath in disproof of the charges made against him or any person charged together with him at the same trial:

Provided that—

(a) he shall not be called as a witness except on his own request in writing;

(b) his failure to give evidence shall not be made the subject of any comment by any of the parties or the Court or give rise to any presumption against himself or any person charged together with him that the same trial.

A similar provision is found in the Prevention of Corruption Act, 1988 in section 21.

As against the above mentioned provision, relevant part of Section 9(5) of the Act reads as under:

"9(5): … Any person accused of land grabbing or the abetment thereof before the Special Court shall be a competent witness for the defence and may give evidence on oath in disproof of the charge made against him or any person charged together with him in the criminal proceeding:

Provided that he shall not be called as a witness except on his own request in writing or his failure to give evidence shall be made the subject of any comment by any of the parties or the special court or give rise to any presumption against himself or any person charged together with him at the same proceeding.

It seems to be a case of a missing "not" between the words "shall" and "be" in the proviso quoted above (the Land Grabbing Acts of AP, Assam and Karnataka suffer the same ommission). If it is so, it needs to be corrected immediatey. If it is deliberate, it is contrary to constitutional protection granted under Article 20(3) against self incrimination. The Law Commission concluded its 180th Report by stating that

"On a review, we find that no changes in the law relating to the silence of the Accused are necessary and if made they will be ultra vires of Article 20(3) and Article 21 of the Constitution of India."

The Special Court:

The Special Court would try criminal offences as well as decide on every issue of ownership, title and possession of the land. The Special Court also has powers to pass interim directions. It goes without saying that questions of ownership, title and possession are essentially civil in nature which can be decided only by a Civil Court that follows procedure laid out in CPC and records evidence as mandated under the Evidence Act. Section 9 does away with both the above. Section 9(3) reads as under:

"9(3) Notwithstanding anything in the Code of Civil Procedure 1908, the Special Court may follow its own procedure which shall not be inconsistent with the principles of natural justice and fair play and subject to the other provisions of this Act and of any rules made thereunder while deciding the Civil liability,"

CPC and Cr.P.C apply to the extent they are not inconsistent with the provisions of the Act as per Section 10. However, it would be too much to expect that CPC will apply with its full rigor considering that the Special Court is expected to follow only principles of natural justice and fair play.

While the Special Court can decide its own procedure, it is also empowered under section 9(5) to determine the order in which the civil and criminal proceedings against a land grabber will be initiated. It is left to the discretion of the Special Court whether or not to deliver its decision or order until both Civil and Criminal proceedings are completed. The evidence admitted during criminal proceedings may be made use of while trying the civil liability, but the additional evidence, if any, adduced in the civil proceedings, shall not be considered while determining criminal liability. Relevant extract from Section 9(5) reads as under:

"9 (5) The Special Court shall determine the order in which the civil and criminal liability against a land grabber be initiated. It shall be within the discretion of the Special Court whether or not to deliver its decision or order until both civil and criminal proceedings are completed. The evidence admitted during the criminal proceeding may be made use of while trying the civil liability. But additional evidence, if any, adduced in the civil proceedings shall not be considered by the Special Court while determining the criminal liability…………"

Can a judge hear a case and keep the judgement pending till trial in another case is over? Would she not be influenced by what happens in the other case? If that is the purpose, why deny the parties benefit of relying on evidence adduced in the other case?

Pronouncement of judgement soon after conclusion of arguments is an essence of a fair trial. Section 353 of Cr.P.C lays down that the judgement in every trial in any criminal court shall be pronounced in open court immediately after termination of the trial or at some subsequent time. CPC, Order XX, Rule 1 requires the court, after the case has been heard to pronounce judgement in open court either at once or soon thereafter as may be practicable. The issue regarding effect of delay in pronouncement of judgement on right of fair trial has been considered on many occasions by the Supreme Court and the High Courts. The Supreme Court in the case of Anil Rai v. State of Bihar reported in (2001) 7 SCC 318 deemed it appropriate to provide guidelines regarding the pronouncement of judgments, expecting them to be followed by all concerned inter alia providing that normally the judgment is expected within two months of the conclusion of the arguments, and on expiry of three months any of the parties can file an application in the High Court with a prayer for early judgment; If, for any reason, no judgment is pronounced for six months, any of the parties is entitled to move an application before the then Chief Justice of the High Court with a prayer to re-assign the case before another Bench for fresh arguments. The appellants before the Supreme Court had referred to the judgments in Surendra Nath Sarkar v. Emperor [AIR 1942 Cal 225 : 43 Cri LJ 466 : 45 CWN 1130] , Jagarnath Singh v. Francis Kharia [AIR 1948 Pat 414 : 49 Cri LJ 704] and Sohagiya v. Ram Briksh Mahto [1961 BLJR 282] to show that only on the ground of delay in rendering the judgment for the period ranging from six months to ten months, the High Courts had held such judgments bad in law and set them aside. The Supreme Court held that

"6. In Bhagwandas Fatechand Daswani v. H.P.A. International [(2000) 2 SCC 13] this Court observed (at SCC p. 14, para 3) that "a long delay in delivery of the judgment gives rise to unnecessary speculation in the minds of parties to a case". This Court in various cases including Hussainara Khatoon (I) v. Home Secy., State of Bihar [(1980) 1 SCC 81 : 1980 SCC (Cri) 23] , Hussainara Khatoon (IV) v. Home Secy., State of Bihar [(1980) 1 SCC 98 : 1980 SCC (Cri) 40] , Abdul Rehman Antulay v. R.S. Nayak [(1992) 1 SCC 225 : 1992 SCC (Cri) 93] , Kartar Singh v. State of Punjab [(1994) 3 SCC 569 : 1994 SCC (Cri) 899] , Raj Deo Sharmav. State of Bihar [(1998) 7 SCC 507 : 1998 SCC (Cri) 1692] , Raj Deo Sharma (II) v. State of Bihar [(1999) 7 SCC 604 : 1999 SCC (Cri) 1324] and Akhtari Bi v. State of M.P. [(2001) 4 SCC 355 : 2001 SCC (Cri) 714] has in unambiguous terms, held "the right of speedy trial to be part of Article 21 of the Constitution of India."

"8. The intention of the legislature regarding pronouncement of judgments can be inferred from the provisions of the Code of Criminal Procedure. Sub-section (1) of Section 353 of the Code provides that the judgment in every trial in any criminal court of original jurisdiction, shall be pronounced in open court immediately after the conclusion of the trial or on some subsequent time for which due notice shall be given to the parties or their pleaders. The words "some subsequent time" mentioned in Section 353 contemplate the passing of the judgment without undue delay, as delay in the pronouncement of judgment is opposed to the principle of law. Such subsequent time can at the most be stretched to a period of six weeks and not beyond that time in any case. The pronouncement of judgments in the civil case should not be permitted to go beyond two months."

The importance of promptness in delivery of judgements was reiterated recently by the Supreme Court in the case of Balaji Baliram Mupade and Another Versus State of Maharashtra and Others reported in 2020 SCC OnLine SC 893.

Section 9(5) of the Act that allows a Judge to not deliver its judgement in a civil or criminal case until both civil and criminal or civil case proceedings are completed run counter to the right of fair and speedy trial.

Rules of Evidence require an offence in a criminal trial to be proved beyond reasonable doubt, whereas nature of proof required in a civil matter is based on preponderance of probability. Such blending of civil and criminal proceedings and the order of its conduct at the sole discretion of the Judge which will differ from case to case and judge to judge is manifestly arbitrary and also contrary to right of fair trial recognized under Article 21, more so, considering that the minimum sentence is of 10 years plus fine equivalent to jantri value (rate fixed by state for the purpose of stamp duty) of the property.

As reported on 20.02.2021 by The Hindu, The High Court of Karnataka struck Section 9(4) of the Karnataka Land Grabbing Act which read as "additional evidence, if any adduced in the civil proceedings shall not be considered by the Special Court while determining the criminal liability" while terming it as unconstitutional. While we await the full text of the judgement, lets hope that at least that much correction would happen in the Gujarat Act also.

No Appeal !!

The decision of the Special Court, on determination of question of ownership, title and lawful possession is treated as final under sec. 9(2) which reads as under:

"9(2) Notwithstanding anything in the Code of Civil Procedure, 1908, any case in respect of an alleged act of land grabbing or the determination of question of title and ownership to, or lawful possession of any land grabbed under this Act, shall, subject to the provisions of this Act, be triable in the Special Court and the decision of Special Court shall be final."

There is no provision of an appeal, a revision, or a review. The only remedy available in the circumstances is that of a writ petition where the scope of interference would be narrower that that of an appeal. The Supreme Court in Dr. Kazimunnisa vs Zakia Sultana reported in (2018) 11 SCC 208, in para 35 while dealing with Andhra Pradesh Land Grabbing Act held as under:

'35. Lastly, we find that the High Court while reversing the findings of the Special Court decided the writ petition under Article 227 like a first appellate court by appreciating the entire evidence little realising that the jurisdiction of the High Court while deciding the writ petition under Article 227 is not akin to appeal and nor can it decide the writ petition like an appellate court.'

Giving finality to the findings of a special court on a question of title and ownership or lawful possession of any land sans provision of an appeal is another instance of the Act being manifestly arbitrary.

Special Court can't even rule on its jurisdiction !

Go to the State for that !!

Another provision which stands out is Section 7(2), which reads as under:

"7(2) Where any question arises as to the jurisdiction of any Special Court, it shall be referred to the State Government, whose decision in the matter shall be final."

In the case of Om Prakash Singh Vs M. Lingamaiah & Others reported in (2009) 12 SCC 613, the Supreme Court , in the context of AP Land Grabbing Act held in para 15 as under :

"15. Ordinary disputes with regard to a title of property are not within the exclusive jurisdiction of the Special Court or the Tribunal. They have to be determined in ordinary civil courts. The Special Courts and the Tribunals are not substitutes for the civil courts in the litigations involving a civil dispute relating to immovable property within the meaning of Section 9 of the Code of Civil Procedure. It has the exclusive jurisdiction where land grabbing is alleged or appeared from the application filed before it."

There would be many a cases where one of the parties would contend that the dispute involved is required to be tried by a Civil Court, that foundational facts which are necessary to attract jurisdiction of a Special Court are missing, that it overlaps with a pending civil or criminal case and that the Special Court does not have jurisdiction. Would in such a case also the question of jurisdiction be referred to the State Government? And who will refer it? The Special Court, who is supposed to be a former or sitting District or Sessions Judge will have to refer it to the State Government, which, working through a bureaucrat, will say that the Court has or does not have jurisdiction, which decision shall be final. Even if one were to try to justify sec. 7(2) by saying that the question to be decided by the State would be limited only to the territorial jurisdiction with respect to the area and in the context of the Notification which is issued by the State Government in terms of Section 7(1) constituting one or more Special Courts for an area or areas, it would still be beyond a State Government to rule on the territorial jurisdiction of a Special Court. Deciding jurisdiction of a Court that is deemed to be a Civil Court and a Court of Sessions is purely a judicial act which cannot be conferred on executive.

Burden of Proof:

With the shortcomings of the Act as mentioned above, it still puts heavy burden of proof on an accused. How would such a burden be discharged when CPC and Evidence Act are not to be followed? Shifting burden of proof in criminal laws is found in many special Acts. Here it makes inroads in civil cases also.

And the Judgement of the Special Court binds all parties interested in the land, Doesn't matter it they were not parties to the lis :

The judgment of the Special Court is binding not just on parties to the lis but also to all persons interested in the land, though they may not have been before the Court. There is no provision (unlike the Assam, AP and Karnataka Acts) that requires the Special Court to cause a special notice taking cognizance of the case under the Act, served on any person known or believed to be interested in the land, after a summary inquiry to satisfy itself about the persons likely to be interested in the land.

Ah …The Committee!!

An argument in support of the Act would be that sufficient safeguard is provided in the Act in as much as no information is to be recorded by a police officer without prior approval of the District Collector in consultation with the Committee notified by the Government. Sounds good. Till we look for the Committee. The act mentions committee at two places - in section 2(a) and in section 12 which are reproduced below:

"2. In this Act, unless the context otherwise requires,-

(a) "Committee" means a committee notified from time to time by the State Government under the chairmanship of District Collector for the purposes of this Act;"

"12. Notwithstanding anything contained in the Code of Criminal Procedure, 1973,-

(a) no information about the commission of an offence under this Act, shall be recorded by a police officer without the prior approval of the District Collector in consultation with the Committee notified by the Government;"

There is no provision whatsoever in the Act on who would be on this high power Committee, how would they be selected/ appointed/nominated – ex officio or otherwise, what would be the strength of the committee, how many members will constitute quorum, qualification of the members, their terms, tenure, secretariat, drawings of minutes of meeting and maintaining of record. It's free for all. Take a pick. Even if the State Government frames rules, it would still be at its own sweet discretion with no guidance and limits set out in the parent Act. And it's a committee that will set in motion or scuttle criminal investigation!

The Act is also silent about what would happen when a Committee grants or refuses to grant its approval. Would the aggrieved person have to approach the Special Court requesting it to take cognizance? What would be the procedure that the Special Court would follow with respect to directing registration of FIR? While Section 9(1) authorizes a Special Court to either suo moto or on an application made by any person or any officer authorized by District Collector to take cognizance of and try every case, Section 12 does not provide for registration of an FIR on direction of the Special Court.

Considering that a penal provision has to be construed strictly, harmonious reading between section 9 and 12 would be quite a challenge.

When an aggrieved party decides to challenge grant or refusal of approval, she will need at least a copy of the order of the Committee. Hopefully, the collector should be handing it out. In case the collector refuses saying that she is not obliged to do so under the Act, would the aggrieved person have to pass through the labyrinth of RTI?

Confusion Compounded:

The FIRs that are being filed after the Act came into effect incorporate offenses under the Act as well as under IPC. This can only lead to sheer confusion. Offences under the Act can be tried only by a Special Court. Offenses under IPC cannot be tried by it. The High Court of Andhra Pradesh in the case of K. Sruti v. P.R Rajeswari and ors. 2010 (3) APLJ HC 53 held in para 15 in the context of the AP Land Grabbing Act as under:

"15……….Offence under Section 420 IPC is triable by Magistrate of First Class, whereas offence under Section 447 IPC is triable by any Magistrate. But Section 9 of the Land Grabbing Act will only authorize the Special Court to exercise the powers of a Court of Session while dealing with the offences under the Land Grabbing Act, but it had no jurisdiction to try the offences under Sections 420 and 447 IPC, which are exclusively triable by Magistrate as referred to above. Therefore, we hold that taking cognizance of the offences under Sections 420 and 447 IPC by the Special Court is beyond its jurisdiction, and the impugned order dated 2.12.2009 passed by the Special Court to the extent of taking cognizance of the offences under Sections 420 and 447 IPC is liable to be set-aside."

The FIRs are however being registered in complete ignorance of the jurisdictional issues of Courts which would put litigants and the courts through harassment and confusion.

The Act prescribes a very heavy sentence and imposes harsh civil liabilities. If one looks at the maximum consequences, a person found to be a land grabber under the Act would be sentenced to imprisonment for 14 years, would be liable to pay fine to the tune of Jantri value of the land, would be directed to pay compensation in terms of money, which shall not be less than the amount equivalent to the jantri value as on the date of the order and profits accrued from the land and would also be forcibly evicted of the land.

When the sentence and civil consequences are so heavy, the trial, right from the time of registration of an FIR to deciding on issues of jurisdiction and evidence to pronouncement of judgement is required to be conducted in accordance with set principles of law which does not seem to be the case here. It will be years before a challenge to vires of the Act, if any, results in finality, before there are binding decisions on the issues raised here and on the issues that will surface as the Act is played out. What would happen till then?