Gujarat May Roll Back Anti Land-Grab Act

There are around 1,000 petitions pending before the high court challenging the Act, said Virat Popat, an advocate at the Ahmedabad High Court.

 

“The penal law can't apply retrospectively. Therefore, provisions of the Land Grabbing Act violate Articles 20 and 21 of the Indian Constitution,” Popat told The Secretariat.

 

Article 20 prohibits self-incrimination, while Article 21 guarantees the right to life and personal liberty.

 

“Most petitioners have submitted that Sections 7, 9, 11, 12, and 15 are Ultra vires – or beyond the powers - of the Gujarat Land Grabbing (Prohibition) Act, and pleaded that the high court direct the state to scrap or revoke those sections”, a lawyer, who did not wish to be named, said.

 

Out of the 1,313 registered cases so far, about 1,045 are concerning private land, and the rest on other or government land. Notably, only 70 cases have resulted in the return of the land, one of the sources said.

 

In January 2022, the state government amended the Act through an ordinance, allowing the aggrieved party to appeal against the final judgment or order issued by the special court in the high court.

 

The amendment also authorized the special court to issue a public notice “to specify the fact of taking cognizance of the case under this Act. Such notification shall state that any objection which may be received by the special court from any person within the period specified therein shall be considered by it.”

 

A source close to the matter, who did not wish to be named, said there were serious problems with the Act even after the amendments, due to which it could get repealed soon.

 

For example, it grants absolute power to bureaucrats and lacks proper procedures for investigation. The Act shifts power from civil courts to Special Investigation Teams (SITs) comprising district collectors, police commissioners, and other police officers. This shift from the Judiciary to the Executive is unconstitutional, the source said.

 

The SITs, composed of individuals without legal training, have undue powers to frame anyone without following due process. This undermines the separation of powers between the Legislature, the Executive, and the Judiciary, as the Executive oversteps into the judicial realm, he added.

 

For example, Bhavanbhai Laxmanbhai Gorasiya, a sub-registrar, was booked by the Amreli police under various sections of the Act on January 30, 2021. As a sub-registrar, he executed a sale deed on March 18, 2018, between two parties and was later named as an accused in the First Information Report (FIR) filed with the police when a dispute arose later between the parties. Gorasiya had neither grabbed nor came to possess any of the disputed land.

 

Moreover, the Act's timeline for filing chargesheets – within 30 days after the registration of the FIR - contradicts the Code of Criminal Procedure. The code gives the liberty of 60-90 days to submit a final report or chargesheet after the FIR and the arrest are made. This could hinder due process, sources said.

 

No doubt, it is a tricky piece of legislation. For instance, the Karnataka state amended The Karnataka Land Grabbing Prohibition Act, 2011, twice in 2020 and 2022, respectively, to make the Act more relevant.

 

Through the amendments, it gave the special court the power to dismiss a complaint or drop further proceedings on insufficient grounds and briefly record its reasons on each case. This ensured that cases filed on false grounds were rejected and the reasons for dismissals were documented.

 

Secondly, the Karnataka Act keeps the power with the Judiciary and does not give the Executive undue powers, unlike the Gujarat Act. It is reflected in the makeup of their special courts. "The Chairman shall be a person who is or was a judge of a High Court and of the other four members, two shall be persons who are or were District Judges and the other two shall be persons who hold or have held a post not below the rank of a Deputy Commissioner of the District," the state government notification on special courts showed.

 

In 2016, the Telangana state government repealed the AP Land Grabbing (Prohibition) Act, 1982, citing the failure of the Act to dispose of cases even after several years against six months stipulated under the Act.

 

Given the uncertainties, interests of small farmers and vulnerable groups which the Gujarat anti land-grab Act was primarily supposed to protect are now hanging in the balance.