Brief Background
In 2020, the Gujarat Government enacted the Gujarat Land Grabbing (Prohibition) Act, 2020 (“the Act”), to combat illegal encroachment and land grabbing of public and private land by land mafias in the state of Gujarat. The Act not only declared land grabbing as unlawful, but also brought it within the purview of crime. For trial of this new offence, the Act prescribed creation of Special Courts whose jurisdiction was not only limited to criminal cases of land grabbing, but also extended to providing civil remedies.
The Act was aimed at ensuring speedy disposal of land-grabbing cases, within six months, to protect the interests of the rightful owner, while also bringing the offence of land grabbing and all related issues with it under one legislation. With this Act, Gujarat became the fourth state to pass legislations prohibiting land grabbing after Andhra Pradesh (1982), Assam (2010) and Karnataka (2016).
Challenge to the Constitutional Validity of the Act
The implementation of the Act was challenged on the grounds that the Act criminalised land grabbing retrospectively and ousted the jurisdiction of civil courts. The Act was criticised for being overly harsh, by introducing a mandatory minimum punishment of ten years imprisonment.
Several writ petitions were filed before the Gujarat High Court to hold and declare the provisions of the Act and the Land Grabbing Rules, 2020 (“the Rules”), as ultra vires to the Constitution of India (“the Constitution”), on legal grounds of repugnancy, manifest arbitrariness, breach of doctrine of proportionality, being violative of Article 14 and 21 of the Constitution of India.
The writ petitions were decided by common judgement, dated May 09, 2024, by the Hon’ble Gujarat High Court in Kamlesh Jivanlal Dave & Anr. v. State of Gujarat & Ors, (Special Civil Application No. 2995 of 2021). Several SLPs have been filed against the aforesaid common judgment dated May 09, 2024, which are currently pending adjudication before the Hon’ble Supreme Court of India[1].
In Part I of the blog, we aim to analyse the issue of repugnancy of the Act and the Rules; followed by Part II, wherein we shall analyse the issues of manifest arbitrariness and the doctrine of proportionality as dealt by the Hon’ble Gujarat High Court.
Challenge on the ground of Repugnancy
The Act was challenged on the ground that its enactment was with respect to matters falling under the Concurrent List and since it encroached upon several central legislations, the Act must be deemed to be repugnant and ultra vires as per Article 254(1) of the Constitution of India.
Article 254 of the Constitution of India deals with inconsistency between laws made by Parliament and laws made by the Legislatures of States and entails the doctrine of repugnancy. Applying the doctrine of repugnancy, if a state legislation is repugnant to a central legislation under Article 254 (1) of the Constitution of India, then the state legislation shall be void, and the central legislation will prevail. However, Article 254(2) of the Constitution creates an exception to this rule by saving repugnant state legislations if they receive presidential assent.
The Hon’ble Gujarat High Court primarily held that the question of repugnancy did not arise with respect to the Act for the reasons discussed and detailed below.
a. Pith and Substance of the Act
The fundamental question before the Gujarat High Court was whether the Act fell within the powers given to the State Legislature. One of the primary arguments against the validity of the Act was that its provisions encompassed various matters enumerated in the concurrent list (“List III”) and the Union list (“List I”) of the Constitution. It was argued that the Act required presidential assent as the impugned legislation fell in Entry 1, 2, 6, 11A[2], 12, and 46 of List III and not Entry 7, 18, 65 & 65 of the State list (“List II”). The Court applied the Doctrine of Pith and Substance to determine within which field of legislation and Lists the Act fell into, by analysing the true nature, import and character of the Act while examining its object and purpose. In other words, the contested statute must be analysed in its whole to determine its Pith and Substance, or its actual nature and character, to establish whether it constitutes legislation regarding items in one or both lists.
The Court applied the test and observed the long title and the whole scheme of the Act, which indicated that in substance, the Act prohibited land grabbing activities and related matters in Gujarat. The Court determined that the paramount purpose and object of the Act pertained to activity related to “land”, within the meaning of Section 2(c) of the Act, which would fall within the field of legislation under Entry 18 of List II of Seventh Schedule of the Constitution, which is a State subject. This meant that only State Legislature was competent to enact laws, with respect to this entry. The necessary conclusion of the aforesaid was that the question of repugnancy or presidential assent would not arise, as the Act does not fall under the Concurrent List.
The Court elaborated further that Entry 64 of List II of the Constitution also empowers States to enact laws creating offences with regard to matters falling in List II. Thus, Entry 64 and 18 of List II of the Constitution, read together, make land with its related rights and offences, pertaining to issues such as land grabbing, exclusively a matter of the State. Furthermore, on the issue of Special Courts, constituted under the Act, the High Court of Gujarat observed that Entry 65 of List II of the Constitution allows the State Legislature to confer jurisdiction and power to courts regarding any matter in List II. Thus, the state is within its legislative competence to create Special Courts, with jurisdiction to handle land grabbing cases, as mentioned under Section 7 of the Act.
Several Supreme Court judgements have established that the entries in the three lists must be interpreted broadly and liberally.[3] The Constitution ensures mutual exclusiveness between the State’s power over land and the Union’s general legislative subjects in List III. No entry in List III pertains to “land”, reinforcing the fact that land rights are solely a state subject. Consequently, there is no conflict of legislative power between the Union and the State regarding land rights. Thus, the Gujarat High Court opined that there was no conflict between the Act/ law and the laws made by Parliament under different entries of List III of the Constitution.
b. Conflict of the Act with different Central Laws
i. Code of Civil Procedure and Code of Criminal Procedure
The Act was further challenged on the ground that it provides for a different procedure than that prescribed under the Civil Procedure Code (“CPC”) and the Criminal Procedure Code (“CrPC”).
With respect to the conflict of the Act with CPC, the Court relied upon Section 4(1) of the CPC, which acts as a saving clause permitting any special law, jurisdiction, or procedure to override it. Since, Section 9(2) of the Act specifies that land grabbing cases are to be tried solely by the Special Court, granting it exclusive jurisdiction, the Court held that the provisions of the Act could not be said to cut down the scope of the provisions of the CPC.
With respect to the conflict of the Act with CrPC, the Court relied upon Section 5 of the CrPC, which is its saving clause, permitting the application of special laws. The Court contrasted it with Section 9(4) of the Act, which provides Special Courts with jurisdiction to handle all offences, and Section 10 of the Act, which provides for applicability of the CrPC except where inconsistent with the Act. Analysing these provisions, the Gujarat High Court concluded that conferring power to try criminal cases to these special courts and granting them powers of a sessions court was in conformity with the provisions of the CrPC.
ii. Inconsistency with any other law, custom, usage or order or decree of a court
As per Section 15 of the Act, the provisions of the Act would prevail despite any inconsistency in any other law, custom, usage or decree or order of a court or other tribunal, which was another ground of challenge to the validity of provisions of the Act. It was contended that this section allowed the Special Court to tinker with and reopen a binding decree or order made by a competent court, which had already determined the lawful entitlement of both parties, which the Special Court had no power to do.
The Gujarat High Court rejected this contention by holding that Section 15 of the Act could not be used to nullify existing decrees passed by a competent civil court before the enactment of the law, i.e., August 29, 2020. However, any order or decree passed by the civil court after the enactment date, i.e., August 29, 2020, could not be used to protect title, since the civil court’s jurisdiction was ousted by virtue of Section 9(1) of the Act. The Special Court need not be guided by civil court orders passed after the enactment date, due to the civil court’s lack of jurisdiction, and it cannot be prevented from deciding such disputes on principles of res judicata or estoppel.
iii. The Specific Relief Act, 1963
It was contended before the Hon’ble High Court that Section 15 of the Act further encroached upon Section 6 of the Specific Relief Act, which provides for suits filed for recovery of possession of immovable property by any person who has been dispossessed without their consent. If the Act would be implemented, the enforcement of such a decree would be an offence and the decree itself would be nullified.
The Court, however, relied upon Section 6(4) of the Specific Relief Act, which provides that nothing in Section 6 of the Specific Relief Act prevents an individual from filing a suit to establish their title.
Accordingly, this implied that even if the land grabber had obtained a decree to retain possession over the immovable property, any other person claiming bona fide legal title of the property would not be barred by virtue of Section 6 of the Specific Relief Act. Thus, the Court rejected the contention that proceedings instituted by a genuine landowner against a landgrabber would encroach upon Section 6 of the Specific Relief Act.
iv. The Limitation Act, 1963
With respect to the Limitation Act, 1963, it was contended that the Act effectively overrode the limitations outlined in Article 64, 65, 66, and 67 of the schedule of the Limitation Act, 1963 (“Limitation Act”), concerning the possession of immovable property. Articles 64 to 66 under the Limitation Act, which provided a limitation period of 12 years in cases of suits filed for possession of immovable property in cases of previous possession, title, or any forfeiture, was rendered useless, given that the Act did not prescribe a limitation period for filing of suits against land grabbing. In other words, it was contended that a time-barred suit would be permitted to alter the rights of a party created by the operation of law, such as through adverse possession.
The Gujarat High Court answered this question by relying upon the savings clause, Section 29(2) of the Limitation Act. This section provides that in situations where a special law prescribes a limitation period different from that mentioned in the Schedule, Section 3 of the Limitation Act would apply as if the different limitation period has been prescribed by the schedule itself. Further, it provides that the other provisions from Section 4-26 of the Limitation Act apply only to the extent that they are not excluded by the special law. This implies that if a special law prescribes a different limitation period than that under the Limitation Act, the former would prevail.
However, the Act itself was silent on limitation period. To solve this anomaly, the Court observed that the Act did not expressly exclude the ambit of the Limitation Act and thus, Article 137 of the schedule of Limitation Act, which provides for a limitation period of 3 years, would apply with respect to adverse possession, the Court clarified that Section 27 of the Limitation Act was also not in conflict with the provisions of the Act.
Adverse possession was based on a plaintiff establishing their hostile title by virtue of exclusive continuance and undisturbed possession of the immovable property. On the other hand, the Act criminalised land grabbing over which the landgrabber had no ownership, title, or physical possession, without any lawful entitlement. Thus, there was no conflict between the two as adverse possession necessarily envisaged the possession of immovable property arising from some lawful entitlement, while land grabbing did not. Thus, all the contentions around Limitation Act were also rejected.
v. Transfer of Property Act, 1882
The Court further examined the doctrines of part performance and usufructuary mortgage mentioned under Section 53A and Section 58, respectively, of the Transfer of Property Act, 1882 (“TPA”), for possible conflict with the Act. Ultimately, however, the Court answered this in the negative.
First, the Court clarified that invocation of the doctrine of part performance in Section 53A pre-supposes a completed agreement as a necessary requirement for its application. Clearly, this doctrine could not be applicable in cases of land grabbing where the ‘land grabber’ had sought physical possession through unlawful means, and the question of complete agreement did not arise.
Similarly, Section 58(d) of the TPA, which codifies the principle of Usufructuary Mortgage also envisages a legally valid mortgage deed and registered documents to create a lawful entitlement in favour of a mortgagee to retain possession. Since cases of land grabbing would not involve questions of a valid mortgage deed, the Court concluded that the Act did not contravene the TPA.
Conclusion
As per the common judgment, the question of repugnancy did not arise. By application of the Doctrine of Pith and Substance, it was clear that the law fell under Entry 18 of List II of the Constitution of India and within the exclusive legislative competence of the State legislature.
With respect to the issue of powers and procedures of Special Courts being in conflict with central laws, the Court relied upon saving clauses in the CPC and CrPC to hold that a special legislation could lay down different procedures. It also clarified that the Act did not tinker with decrees deciding title of immovable property before the enactment date of the Act.
Further, the Court found no discrepancy between the Act and the general principles of law, codified under the Specific Relief Act, Limitation Act and the TPA. Finally, since the offence of land grabbing envisaged lack of legal entitlement, the doctrines of part performance and usufructuary mortgage mentioned under the TPA had no application in the implementation of the Act.
For further information, please contact:
Monark Gahlot, Partner, Cyril Amarchand Mangaldas
monark.gahlot@cyrilshroff.com
[1] Refer to Kishan Balabhai Boriya vs. The State of Gujarat [SLP (Crl.) No. 7725 of 2024], Geeta Karsandas Senma vs. State of Gujarat [SLP (Crl.) No. 8057 of 2024]; Kutch Chemical Industries Limited Vs. State Of Gujarat [SPL (C) No. 12815 of 2024] filed before the Supreme Court of India.
[2] Entry 11A initially used to be in List II but was shifted to the List III after the 42nd Amendment of the Constitution.
[3] Ahmedabad Municipal Corporation. v. GTL Infrastructure Ltd., (2017) 3 SCC 545; Jayant Verma v. Union of India, (2018) 4 SCC 743; State of Karnataka v. State of Meghalaya, (2023) 4 SCC 416
