Criminalising 'tool' created, name: Gujarat Land Grabbing Prohibition Act 2020

By Varsha Bhagat-Ganguly, Rejitha Nair*
The year 2021 in Gujarat opened its account with 647 alleged land grabbing cases under investigation, 16 FIRs filed against 34 land grabbers within 35 days of Gujarat Land Grabbing Prohibition Act 2020 (GLGPA), as informed by the Additional Chief Secretary (Home), Gujarat State, in a press conference on January 22, 2021.
He further informed that of 647 alleged cases, 605 applications of land grabbing were received by different collectors who have initiated suo moto proceedings in 42 cases. The total land in these cases is estimated to be around 1.35 lakh square metre, worth Rs 220 crore as per jantri rates (ready reckoner of land prices in different parts of the state).
By March 15, 2021, at least six even cases are before the Gujarat High Court. Of about 11 cases reported in the daily newspapers, in three cases, grabbing of government land is charged, and the rest are land disputes between two individuals. The promptness of the district collectors and police, in identifying and framing cases, and arrests have intrigued us to examine the relevance of this Act.
Traditionally, in normal circumstances, land disputes between two individuals are usually seen as civil cases. Simply put, either party’s allegation of fraudulent transactions (sale or lease or mortgaged) or wrongly possessed or lack of due records drive two parties to the court.
When most of such cases can be solved amicably, with due course of adjudication, now they are covered under the GLGPA with police’s prompt actions, imposing criminal liability on the disputed parties. The constitutional validity of the GLGPA is challenged in the High Court of Gujarat in February 2021. This situation has compelled us to examine the objective of the Act.
The statement objects and reasons of the Act mentions:
“It has come to the notice of the Government that there are attempts on the part of certain lawless persons operating individually or in groups to grab either by force, or by deceit or otherwise lands belonging to the Government, a local authority, a religious or charitable institution or endowment as well as private individuals. The land grabbers are setting up fictitious claims and indulging in large scale and fraudulent sales of land through unscrupulous real estate dealers or otherwise. As public order is adversely affected by such unlawful activities of land grabbers in the State.”
A statement by Chief Minister Vijay Rupani in the press conference organized on January 22, 2021 is revealing in the context of GPGLA, that “the priority of his government is to give a sense of peace and security to the people by giving a free hand to the police department.”
Such vaguely expressed objects and reasons of the GPGLA, and decisive words of the CM lead to two arguments: either the Act aims to ‘frame’ some preconceived individuals as land grabbers or the Act fails to capture various contours of land or property disputes. In case of the first argument, the Act appears as an instrument with hidden agenda, to be used against the ‘preconceived’ individuals or entities to be framed. In the case of the latter argument, the Act appears to be 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." 

Apart from Gujarat State, there are two other states which have laws on land grabbing – Assam Land Grabbing (Prohibition) Act, 2010 came into force in 2011; Karnataka Land Grabbing Prohibition Act 2011(KLGPA) amended in 2020. Andhra Pradesh had Andhra Pradesh Land Grabbing (Prohibition) Act, 1982 which was repealed in 2016. The provisions of GLGPA are heavily drawn upon from the other states acts, more akin to KLGPA 2011.
We found out that prior to this Act, Karnataka Government has undertaken due processes to understand ‘land grabbing’ as an activity, form, its extent, and related processes through an investigation by a Joint Legislature Committee on Encroachments in Bangalore Urban District in 2006; a Task Force for Recovery of Public Land and its Protection in 2009; and establishment of Karnataka Public Lands Corporation Limited in 2015.
The Government of Gujarat enacted the GLGPA with vague statement of objects and reasons, without doing any such ground work. Moreover, Karnataka High Court has struck down some of the provisions of the KLGPA 2011, with due jurisprudential concepts.

Perspectives to look at ‘land grabbing’

The term ‘land grabbing’ is actually a global phenomenon, which refers to large-scale land acquisitions and land transformations, mainly by private enterprises directly or with the help of the state. Land grabbing represents a new wave of imperialism in many countries of the world. Varsha Bhagat-Ganguly (2020) has elaborated perspective on land grabbing, saying that it is important that from which perspective a land deal is viewed, and how benefits of land deals are defined and whether they have realized the benefits. For example, whether the access to land has helped in employment opportunities or the land is used mainly for economic and political benefits for a few.

Gujarat chief minister Vijay Rupani

From the perspective of access to land and livelihood of Dalit women, a case of a group of Dalit women of Vautha village, Dholka taluka in Gujarat state is examined. Fifty Dalit women were united under the aegis of Jai Bheem Mahila Kheti Mandal to clear wasteland infested with gaando baval, a thorny, notorious, wild shrubs (scientifically known as prosopis juliflora) in 1989 and after 31 years, these women are threatened to be booked under GLGPA.
Another example is of Chhatrapalsinh Parmar, whose case is framed under the Act, for the alleged construction of hotel-like structure in 161 sq m land of Bhavnagar APMC market yard. With stringent implementation of this Act, thousands of such collectives are apprehended to lose their access to land and would become ‘alleged land grabbers’!

Perspective of legal procedures and jurisprudential concepts

While examining the GPGLA from the perspective of legal procedures and jurisprudential concepts, the following points are problematic. Most problematic provisions are: (i) Scope and applicability of the Act; (ii) Definition of Land Grabber; (iii) Retrospective effect of the Act; (iv) Self-incrimination; and (v) powers and procedures of special courts.

(i) Scope and applicability of the Act:

The GLGPA is applied to all kinds of lands in the state of Gujarat, i.e., whether belonging to the Government, a Public Sector Undertaking, a local authority, a religious or charitable institution or any other private person. In the KLGPA, the Act only applies with respect to land of the Government, a local authority, a religious or charitable institution or endowment and does not apply to private land.
The Special Courts under the Act are empowered to initiate Civil and Criminal proceedings against the accused, which is to be tried by the procedures laid down the court which may be substantially different from Civil Procedure Code, 1908 and Criminal Procedure code, 1973. The Act also overrides all existing laws, customs, usage, agreements or even decree or orders of courts or any other authority.

With stringent implementation of the Act, thousands of collectives are apprehended to lose their access to land and would become alleged land grabbers

This means that the Limitation Act, 1963 would also not be applicable in the land grabbing cases. The Limitation Act prescribes certain time limits within which an aggrieved party has to approach the court for different civil suits. For land disputes the Limitation Act prescribes 12 years’ time bar in case private land and 30 years in case of government land.
No such bar on land disputes would be applicable to file a complaint under GLGPA making it possible for trying alleged land grabbing which may be close to half century old, for example as reported in the case of Kamlesh Dave and Pankaj Patel from Sabarkantha.

(ii)Definition of ‘land grabber’:

As the definition of land grabber includes ‘successors in interest’ who might have inherited or bought the land in good faith without being aware of any defect or infirmity in title of the land; this may amount to a danger that any purchase of land can be potentially ‘land grabbing’!
It is well known that land ownership in India is presumptive; the onus of checking past ownership records of a property is on the buyer. Despite resurvey of land in 90% areas of Gujarat, number of civil suits on land disputes are more than two lakhs. In absence of conclusive titling, the allegation by the state for land grabbing will make many innocent citizens a ‘land grabber’.

(iii) Retrospective effect:

Under section 4(2) Any person who on or before the commencement of the Act continues to be in occupation of the grabbed land is guilty of an offence under the Act and under section 9(1) of GLGPA the special court is empowered to take cognizance and try acts of alleged land grabbing whether before or after the Act. These provision in effect makes a criminal offence retrospectively applicable which is in violation of Article 20(1) of the Constitution.
The Karnataka High Court has upheld constitutional validity of a provision akin to the Section 4(2) of GLGPA in its recent judgement on KLGPA (Shriram Properties Pvt Ltd v state of Karnataka); the Court relying the jurisprudence of continuing offence under Narcotic Drugs and Psychotropic Substances Act (NDPs Act) stated that the provision of KLGPA is also continuous in nature and is a continuing offence and there is no retrospective application.
But in GLGPA the wordings of Section 9(1) preclude any justification of land grabbing as continuing offence as the section clearly states that the special court can try acts of alleged land grabbing which might have occurred before the commencement of the Act and there is no mention of continuous occupation.
Also, the parallels drawn between NDPS Act and the KLGPA by Karnataka High Court is highly problematic because unlike the possession of Narcotic Drugs and Psychotropic substances, there are many ways in which a land occupied by a person without a title can be regularised by operation of law.
For example, The Gujarat Land revenue Code, 1879 confer discretion to the authorities under to regularize unauthorized occupancies of a government or municipal land subject to certain conditions and the title, use, development and management of Forests land provided to the forest dwellers is recognized under The Scheduled Tribe and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 (Central Act 2 of 2007).
But the GLGPA overrides all such legislations, which means that the lands that are not been regularised, whose applications are pending before the concerned authorities under these acts could also be charged under GLGPA. The case of Vautha village women is one such case.

(iv) Self-incrimination:

A serious constitutional challenge is also posed by the Section 9(5) of the Act, which makes provision for the accused to be called as a competent witness for the defence, and his failure to give evidence shall be used by the Court to arrive at an adverse conclusion against him. This is a violation of right against self-incrimination guaranteed under Article 22 the Constitution.
It is noteworthy that an identical provision in KLGPA was partly stuck down by the Karnataka High Court to the extent that it allows failure to give evidence by the accused to be subject of any comment or presumption against him.

(v) Power and procedures of the Court:

Section 9(5) of the Act lays down rules of evidence wherein the evidence admitted during the criminal proceeding may be used while trying the civil liability, but vice-a-versa is prohibited. An identical provision in KLGPA was also stuck down by the court as violative of Article 21 on the ground of being arbitrary and unreasonable.
The Act u/s 9(3) gives wide discretion to the Special Court to lay down its own procedure the only requirement is that such procedure should not be contrary to principles of Natural Justice. The safeguards provided by the set principles under the Criminal Procedure Code, 1973 (CrPC), and Civil Procedure Code, 1908 (CPC) regarding registration of an FIR to deciding on issues of jurisdiction and evidence to pronouncement of judgement are not available to the accused. The implications of this provision have to be understood in the light of the heavy sentence and harsh civil liabilities imposed by the Act. The Act has the highest punishment of all acts of other states, on two counts:

• Imprisonment – GLGPA allows imprisonment for minimum 10 years maximum 14 years. This is the longest period of imprisonment, as compared to other states – as per Assam Act, imprisonment is for minimum 2 years to maximum 5 years; A.P. Act, it was minimum 6 months to maximum 5 years; and in the Karnataka Act, minimum one year to maximum 3 years.
• Penalty/fine – GLGPA’s penalty is upto Rs 25,000, and fine which may extend to jantri value of the property. This is the highest amount as penalty compared to other state’s provisions – upto Rs 2,500 as per the AP Act, and up to Rs 4,500 as per the Karnataka Act.
• Civil liability – Compensation for wrongful possession of the land grabbed shall not be less than an amount equivalent to the jantri value of the land grabbed as on the date of the order and profits accrued from the land. In such cases, the aggrieved party do not even have an avenue for appeal as the Act does not provide for any Appellate authority to which appeal from special courts may lie.

Further, Section 11 of the Act shifts burden of proof on the accused, once the prima facie case of land grabbing is established by the State. The law does not prescribe any standard of evidence for establishing prima facie case. The threat created with this provision is that the prima facie case can be established even on the basis on hearsay. 

This is important because such cases (Pundlika v The Tahsildar, Haliyal) have been reported where the accused were convicted in the Lower Court and the High Court of Karnataka struck down their convictions on the ground of the prosecution relying on hearsay evidence to establish prima facie case.

Concluding remarks

The jurisprudence of land has many concepts, such as adverse possession, regularisation of title of possessor, bar on dispossession of settled possessor except though due process of law, ownership through adverse possession etc. The primary concern of the existing land laws to regulate land related affairs is based on the consideration that land is a limited natural, economic, productive resource and cannot be left in abeyance for a long time.
The law has always recognised the right of a person taking care of the land and making highest and best use of land will prevail the actual title of the land. This Act is challenging the basic tenets of land laws.
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*Dr Varsha Bhagat-Ganguly is working as Professor at the Institute of Law, Nirma University. Land issues is one of her areas of interest and has published on land rights, land titling, and land issues in neoliberal India . Rejitha Nair is a Doctoral Candidate, National Academy of Legal Study and Research (NALSAR), and works as a Data Researcher with the ‘Land Conflict Watch’

References

• Bhagat-Ganguly, Varsha. 2020. ‘Land grabbing’, in Rukmini Bhaya Nair and Peter Ronald deSouza (eds.). Keywords for India: A conceptual lexicon for the 21st century, London: Bloomsbury.
• Chauhan, Ashish. February 5, 2021. ‘Gujarat: 51 Women who turned wasteland into farmland face eviction threat.’, Times of India. Available at https://timesofindia.indiatimes.com/city/ahmedabad/gujarat-51-women-who-turned-wasteland-into-farmland-face-eviction-threat/articleshow/80698371.cms
• Express News Service. January 23, 2021. ‘647 land grabbing cases are under probe, 16 FIRs filed, says Gujarat Government’, Indian Express. Available at https://indianexpress.com/article/india/647-land-grabbing-cases-are-under-probe-16-firs-filed-says-gujarat-govt-7158045/
• Pandya, Asim. February 12, 2021. ‘Gujarat Land Grabbing (Prohibition) Act, 2020 – Slapdash Drafting, Reflects Lack of Vision, and Unconstitutional’, LiveLaw. Available at https://www.livelaw.in/columns/gujarat-land-grabbing-prohibition-act-2020-constitutionality-land-grabber-private-land-169760.
• Shriram Properties Pvt Ltd v state of Karnataka, Karnataka High Court WP No. 47447/2017
• Times News Network. January 3, 2021. ‘First FIRs under new land grab law filed in Bhavnagar’, Times of India. Available at https://timesofindia.indiatimes.com/city/rajkot/first-firs-under-new-land-grab-act-filed-in-bhavnagar/articleshow/80076834.cms.
• Times News Network. February 13, 2021. ‘Law against land grabbing challenged in Gujarat HC’, Times of India. Available at https://timesofindia.indiatimes.com/city/ahmedabad/law-against-land-grabbing-challenged-in-hc/articleshow/80887430.cms.
• Pundlika v The Tahsildar, Haliyal, Karnataka High Court W.P.Nos.107314-107315/2019