Constitutional validity of Gujarat Land Grabbing Act challenged in High Court

A petition has been filed in Gujarat High Court challenging the constitutional validity of Gujarat Land Grabbing (Prohibition) Act, 2020, a special law implemented recently by the Vijay Rupani-led BJP government that has many stringent provisions including jail term from 10 to 14 years, registration of offences with retrospective effects, among others.

The petitioners, while challenging the Act, have contended that they have been booked for a land transaction that actually took place nearly 50 years ago. The petition argues that many of the provisions under the Act such as amalgamation of civil and criminal law, setting up of special court and appointment of judges by the state government, booking suspects in the cases even when the law was non-existent are "unconstitutional" and should be quashed. The petition is likely to be heard on February 18.

Two residents of Sabarkantha, Kamlesh Dave and Pankaj Patel, have filed the petition through advocates Virat Popat and Maulik Shah. Dave and Patel have been booked under the new law for a land transaction that occurred in 1972. In 2007, Dave sold the land in question to Patel. Later on, the original sellers' relatives started claiming rights.

The complainant against the duo alleged that at the time of the sale deed, she was a minor but her right over the land could not have "disturbed". The land had been sold by her mother and brother. She had filed a civil suit to claim her right. The petition states that she withdrew her case in 2011. However, another claimant appeared and filed another civil suit. The petitioners have said that the circle officer, after an inquiry, found that no case was made out against them, yet FIR was filed under the new law. A similar opinion was given by the Mamaltdar despite FIR registered against the petitioners.

On the law point, the petitioners have argued that special law being the "subject matter of concurrent list, the enactment requires the assent of the President under Article 254 of the Constitution of India which is sine qua non. Thus, the Act is enacted and enforced in the absence of legislative competence". Besides, the petitioners have submitted that "The act has retrospective applicability and it makes the past innocent act as an offence by the post facto law which violates the fundamental rights guaranteed under Article 20 of the Constitution." Article 20 says that no one can be convicted for an offence which was not in force at the time of the commission of the particular act.

The state government, last month, said that over 600 land-grabbing cases were under probe and 16 FIRs had already been filed after the law came into force. The government abolished the Special Investigation Team (SIT) which was set up during the time of former chief minister, Prime Minister Narendra Modi. Under the new law, a committee headed by the district collector has to evaluate complaints and forward them to prant officer who, in turn, will report back and within 21 days, a decision has to be taken as to whether or not a complaint should be filed. Based on this report, FIR will be filed. The law has a provision for special court and burden proof will be on the land grabber.