Introduction
To address the issue of land grabbing in Gujarat, the government introduced the Gujarat Land Grabbing (Prohibition) Bill, 2020, in the State Legislative Assembly. Upon approval, the Bill became the Gujarat Land Grabbing (Prohibition) Act, 2020, (“the Act”), effective August 29, 2020. However, the implementation of the Act was questioned on the grounds of it being overly harsh and its enactment being contrary to law.
In Part I of this post, we analysed the question of repugnancy of the Act under the Constitution of India (“the Constitution”) and possible conflict with different central laws. The Gujarat High Court in its judgement, however, rejected these contentions and upheld the validity of the Act. In Part II, we analyse the issues of manifest arbitrariness and the violation of the doctrine of proportionality, along with other grounds and contentions raised before the Gujarat High Court.
Manifestly Arbitrary? The Article 14 Challenge
The challenge to the validity of the impugned Act being manifestly arbitrary was contended on three grounds, i.e., the Act violates Article 14 of the Constitution substantially, the basic structure of the Constitution, the doctrine of proportionality as it makes every action of a landgrabber an offence, irrespective of the value of the land allegedly grabbed or the nature of the act. Such metrics should ideally be considered by a court to decide the gravity of an offence and punishment should be commensurate to the gravity of the offence.
The Hon’ble Court, while considering the contentions, relied on the State of Bihar and others vs Bihar Distillery Ltd[1],in which the Supreme Court held that the starting point in a constitutional challenge is the presumption of constitutionality. Courts strive to uphold the validity of a statute as much as possible and only invalidate it when necessary. A court should not nitpick or search for drafting errors; instead, it should rectify it to uphold the statute’s constitutionality. This approach recognises that legislative acts reflect the will of the people and should not be easily interfered with. To declare an enactment void, its unconstitutionality must be clearly and plainly established.
In interpreting a statute, the Court must adopt a construction that suppresses mischief and advances remedy. This rule was laid down in Heydon’s Case[2] and is known as the rule of purposive construction or mischief rule. The Court may not only take into consideration the purpose for which the statute was enacted, but also the mischief it seeks to suppress. This mischief rule became the historical source of purposive interpretation.
Looking at the context of enactment, the Act seeks to remedy the mischief of certain unscrupulous persons, who occupy or attempt to occupy lands to which they have no right, title or interest or take possession without any lawful entitlement. The State Government felt the need to bring a law to curb the illegal act of land grabbing, guided by the social conditions prevailing at the time of bringing the enactment.
Before answering the challenge on the ground of Article 14 of the Constitution, the Court relied on the following judgements, which detailed the scope of the Andhra Pradesh Land Grabbing Act, 1982, (“A.P. Act”), the provisions of which are pari materia to the impugned Act:
Konda Lakshmana Bapuji vs Government of A.P. and others[3]:
The Apex Court held that Special Courts, equipped with the powers of both Civil and Criminal Courts, could handle cases of alleged land grabbing, ownership disputes, and lawful possession issues under the provisions of the CPC and the CrPC. The Court’s decisions are binding on all involved parties. Mere allegations of land grabbing are sufficient to invoke the jurisdiction of the Special Court, either suo motu or upon application by any individual or authority.
To establish a case of land grabbing in civil proceedings, the complainant must prove both in terms of fact and intention that the accused has unlawfully occupied their land with the intent to illegally possess it. The definition of ‘land grabbing’ under Section 2(e) of the A.P. Act, similar to the Gujarat Land Grabbing Act 2020, requires lawful entitlement to the land to avoid being labelled as a ‘land grabber’. A mere prima facie claim is insufficient; lawful entitlement is crucial.
M/S Mahalaxmi Motors Ltd vs Mandal Revenue Officer & Ors[4]:
The Apex Court observed that lawful entitlement to possess a land (by a party) being the determinative factor, is axiomatic, so long as the land grabber is unable to show his legal entitlement to hold the land, the jurisdiction of the Special Court cannot be held to be ousted. An averment that a person had been in unlawful possession itself is sufficient to invoke the provisions of the Act.
Industrial Investment Bank of India Ltd vs Bishwanath Jhunjhunwala[5]:
The Apex Court held that the Act undisputedly confers a wide jurisdiction upon the Special Court and the Special Tribunal. For all intent and purport, Tribunals and Special Courts are substitutes for the Civil and appellate Court. The Statement of Objects and Reasons for enacting the A.P. Act clearly established that the said Act was enacted to achieve a special purpose. The A.P. Act brings within its umbrage not only “grabbing of lands” of Government or local authorities, but also statutory authorities and private persons. The provisions of the Code of Civil Procedure and Code of Criminal Procedure are ordinarily applicable, subject to provisions to the contrary.
Analysis of Challenge against the Act under Article 14
After analysing the judgements on the scope of the A.P. Act, the Court analysed the challenge against the Act on the ground of Article 14 of the Constitution under the following heads:
Object and purpose of the Act
The Act essentially replaced proceedings under the existing legislation, such as the Transfer of Property Act, Public Premises (Eviction of Unauthorised Occupants) Act, 1971, and brought the offence of land grabbing under a single special legislation. As per the Court, when the Statement of Objects and Reasons of the Act is read alongside its various sections, it becomes clear that the legislature intended to address only one class of lands, i.e., grabbed lands. The Act targets the “grabbing of lands in the State”, which includes any unauthorised, dishonest, or violent possession of land. Therefore, individuals who commit land grabbing on private lands do not form a separate class; they fall under the same category as any land grabber. The main objective is to prohibit all unlawful land grabbing activities in the State, and lawful entitlement of the occupier is crucial for invoking the Act’s provisions.
Jurisdiction of Special Courts (The Basic Structure Challenge)
It was contended that Section 7(2) of the Act, which permitted the State Government to decide questions related to jurisdiction of the Special Court with finality, was violative of the basic structure of the Constitution by attacking the separation of powers between the executive and the judiciary. Additionally, by not allowing the Special Court to decide its own jurisdiction, the law was manifestly arbitrary.
The Court rejected this contention by holding that Section 7(2) of the Act meant that questions related to jurisdiction of the Special Court for establishment in specific areas or types of cases, would be decided by the Government basis its notifications. Section 7(2) had no role in the Special Court taking cognizance of complaints or trying cases of land grabbing. Any jurisdictional question about the Special Court’s authority to initiate suo motu actions or entertain complaints would be decided by the Special Court itself. Thus, the rule was not violative of either the Basic Structure or Article 14 of the Constitution.
Power of the Special Courts: Unguided?
It was contended that Section 9 of the Act gave unbridled power to the Special Court to determine its own procedure and simultaneously conduct civil and criminal trials to decide liability and guilt, respectively, of the accused person.
The Court clarified at the outset that civil and criminal proceedings could be conducted simultaneously. Since, the Special Court might have to decide complicated questions of title, the power to decide the order of multiple cases would be relevant, as in such cases, civil proceedings would have to be completed. This would be especially true in cases where the accused might raise a valid legal claim over the disputed land, which would require the court to decide the question of title before deciding criminal liability. Therefore, if the defence did not raise a claim of better title, the Special Court would not have to conduct a full civil trial and could decide the guilt (following the principles of criminal jurisprudence) and civil liability (in a summary manner) simultaneously. Thus, the Court held that allowing the Special Court to decide its own procedure was justified.
On the aspect of vagueness and misuse, the Court made it clear that allowing Special Courts to prioritise criminal or civil cases would not be resulting in misuse of such power. It also rejected the contention that Special Courts might get influenced by the evidence of different proceedings on the ground that the standard of appreciating evidence in both proceedings were different.
Other Miscellaneous Grounds
On the issue of constitution of Committee and the procedure prescribed in the Gujarat Land Grabbing (Prohibition) Rules, 2020 (“The Rules”), framed under the Act, the Court did not find any fault in Section 12(a), which mentions Committee defined in Section 2(a), to be notified by the State Government, which is an Executive Committee entrusted with the task of making preliminary inquiry to verify the complaints of land grabbing. Section 2(a) states that the Committee, chaired by the District Collector, will be notified by the State Government. Committee includes officers of the state, other than the District Magistrate/ Collector. The Court held that deciding the members of such a committee would squarely fall in the executive domain considering the varied nature of complaints.
On Section 11 of the Act imposing a reverse burden on the accused, the Court relied on Section 106 of the Indian Evidence Act, which requires facts that are in the special knowledge of a person to be proven by them. Hence, after the prosecution furnishes prima facie evidence that the land was owned by someone other than the accused, it was held that the burden would shift to the accused to prove their lawful entitlement. Thus, the provision was in conformity with the law of evidence and not in contradiction with the presumption of innocence. The Act’s provisions against both private and Government land grabbing were not arbitrary, as no hostile discrimination could be demonstrated.
In conclusion, the Court rejected all arguments propounded to prove the Act to be manifestly arbitrary or violative of any doctrine subsumed within Article 14, such as the principle of vagueness, equality or Rule of Law.
Doctrine of Proportionality and Validity of Mandatory Minimum Sentence
It was contended that the Act provided for unusually harsh and cruel punishment of minimum mandatory sentence of 10 years, which could extend to 14, which was disproportionate to the gravity of the offence. The law further did not distinguish between ‘land mafia’ and one-time offenders by punishing both with the same sentence. This was a violation of an accused person’s Right to Life and the law should be read down to give courts the discretion to determine sentence based on facts of the case. Such a punishment was disproportionate, excessive, cruel and harsh. Alternatively, it was argued that the Law was a legislative usurpation of a judicial function, that of deciding the sentence.
Legislative Supremacy and Power of Judicial Review
As per the Principle of Proportionality, the Court must ensure that the legislature maintains a proper balance between the adverse effects laws may have on rights, liberties or interests of persons, keeping in mind the purpose they intend to serve. In the State of Madras vs V.G. Row[6], it was held that the Court must keep in mind, the nature of the right alleged to have been infringed, the underlying purpose of the restrictions, the extent and urgency of evil sought to be remedied. The Court held that the reasonableness doctrine of classification, based on intelligible differentia, having nexus to the object of the legislation, is nothing but the principle of proportionality.
The Court did not accept the reliance on Mithu v. State of Punjab[7], and held that the case did not lay down a unform position against mandatory minimum sentences. Relying on Vikram Singh @ Vicky v. Union of India[8],the Court observed that courts should avoid labelling every alleged disproportionate sentence as unconstitutional. Sentencing policies are guided by various penological theories and societal considerations. The Act aims to deter illegal claims over property, whether public or private, to prevent lawlessness and protect individuals’ rights to their property. Deprivation of property not only causes mental injury, but also affects livelihood, social status and dignity. Thus, the severity of a 10-year imprisonment sentence under the Act must be considered holistically, including the importance of protecting property rights enshrined in Article 300A of the Constitution.
As Parliament and legislature are representative of the general public, they are assumed to know and be aware of the need of the people. The Court could not sit in judgement over such legislative wisdom. Thus, the Court concluded that the challenge on the ground of mandatory imprisonment of 10 years under the Act did not suffer from the vice of unconstitutionality as per the proportionality principle.
Mens rea and Retrospectivity: Violation of Article 20 of the Constitution
On retrospectivity, it was contended that the Act penalised even those who might have allegedly grabbed the land before August 29, 2020, when it was not an offence by virtue of the definition of a ‘landgrabber’ under Section 2(d) of the Act. It was further contended that there was complete absence of mens rea requirements under the law.
Answering the aspect of retrospectivity first, the Court held that retrospectivity could not be read into the offence to make it a continuing offence. The Act only attempts to criminalise those who continue to unlawfully occupy land to which they have no legal claim after August 29, 2020. The Court reasoned that differentiating between land grabbing occurring before and after the introduction of the Act would lead to an anomalous situation, where those who gained unlawful possession of land before the enactment of the Act would not be termed as ‘land grabbers’ and rejected this contention.
On the aspect of mens rea, the Court held that the nature of mens rea was implied in a statute creating an offence. It held that the purpose of the Act was to deter people from Land Grabbing by making it a criminal offence, sending a message that such a grabber would have to handover the possession of the grabbed land or face criminal charges.
Rule 5(2): Effect of Inclusion of the Word ‘headstrong’
Next, the Petitioner challenged Rule 5(2) of the Rules. As per this rule, the Collector/ State Government have been empowered to take suo moto cognizance and action in case of grabbing of Government land by a ‘headstrong person’. The Petitioner argued that the term ‘headstrong person’ was undefined in the Act and could give unfettered discretion to the Government to label any person as a ‘headstrong person’ and act against them.
The Court applied the rule of literal construction to give the word ‘headstrong’ its plain and simple meaning from the context and language of the provisions. Applying these rules, the Court concluded that a ‘headstrong person’ under the Rules meant a stubborn man, habitual of occupying government land wilfully, against whom the Government may take suo moto cognizance and action to conduct an inquiry as per Rule 5 to ultimately file an FIR for land grabbing, similar to a case of complaint. The Court, relying on Benilal v. State of Maharashtra[9], held that the legislature may use general words to meet its objective and the mere fact that a particular word or phrase was left undefined could not be ground for striking down the law as unconstitutional.
Conclusion
The Gujarat Government has long been grappling with increasing incidents of land grabbing in recent years. Cities such as Baroda and Ahmedabad have witnessed numerous cases of illegal encroachment, particularly on agricultural lands. These activities involve individuals or groups attempting to fraudulently acquire landholdings through deceptive means, often with the assistance of corrupt property dealers. Notably, landowners include not only farmers, but also government authorities, charitable organisations and religious associations.
As discussed in Part I, the Court conclusively determined the validity of the Act on the issues of repugnancy and conflict with other central laws and held that no question of repugnancy or conflict arose. In relation to the question of manifest arbitrariness, the Court analysed various sets of arguments that attempted to prove the Act to be manifestly arbitrary or violative of doctrines subsumed within Article 14 of the Constitution and rejected all such contentions.
Thus, by its judgement dated May 09, 2024, the Gujarat High Court has held that the Gujarat Land Grabbing (Prohibition) Act, 2020, is not repugnant, manifestly arbitrary, disproportionate, or retrospective and provided considerable clarifications regarding the implementation of the law. However, the common judgement dated May 09, 2024, has since been challenged before the Hon’ble Supreme Court of India and the aforesaid findings are subject to the outcome of the pending adjudication of the SLPs before the Supreme Court.
For further information, please contact:
Monark Gahlot, Partner, Cyril Amarchand Mangaldas
monark.gahlot@cyrilshroff.com
[1] 1997 (2) SCC 453
[2] (1584) 76 ER 637
[3] (2002) 3 SCC 258
[4] 2007 (11) SCC 714
[5] 2009 (5) SCC 478
[6] AIR 1952 SC 1961
[7] 1983 (2) SCC 277
[8] 2015 9 SCC 502
[9] 1995 Supp (1) SCC 235
