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Criticism of the Gujarat Land Grabbing (Prohibition) Act, 2020 (Part 2)

Criticism of the Gujarat Land Grabbing (Prohibition) Act, 2020 (Part 2)

Definition and estimates of land grabs | Global Challenges

SIMILARITIES BETWEEN THE ACTS BY OTHER STATES

  • The majority of the definitions which are mentioned in both the acts  such as: person, land grabbing, land grabber.
  • Section 6 of the act which is termed as “offence by the companies” and which laid down the certain conditions and definitions  of a “company” and “director”.
  • Section 11 which contains the “burden of proof”, in which an accused has to prove its innocence.
  • The power to override other laws.
  • The authority and a time frame to the government to make rules.
  • The Prohibition of alienation of lands grabbed.
  • The powers of the State government to remove difficulties, if arises in giving effect to the provisions of this act.

DIFFERENCES BETWEEN THE ACTS BY OTHER STATES/ COMPARATIVE ANALYSIS

BASIS               GUJARAT               KARNATAKA         Andhra Pradesh
Definition of land grabbing (d) “land grabber” means a person who commits land grabbing and includes any person who gives financial aid to any person for taking illegal possession of lands or for construction of unauthorized structures thereon, or who collects or attempts to collect from any occupiers of such lands rent, compensation and other charges by criminal intimidation, or who abets the doing of any of the above mentioned acts, and also includes the successors-in-interest; 

(e) “land grabbing” means every activity of land grabber to occupy or attempt to occupy with or without the use of force, threat, intimidation and deceit, any land (whether belonging to the Government, a Public Sector Undertaking, a local authority, a religious or charitable institution or any other private person) over which he or they have no ownership, title or physical possession, without any lawful entitlement and with a view to illegally taking possession of such land or creating illegal tenancies or lease or licence, agreements or transfer or sale or by constructing unauthorized structures thereon for sale or hire or use or occupation of such unauthorized structures and the term “grabbed land” shall be construed accordingly; 

(e)“land grabber’’ means a person or group of persons or a Society, who commits or has committed land grabbing and includes any person who gives financial aid to any person for taking illegal possession of lands or for construction of unauthorised structures thereon, or who collects or attempts to collect from any occupiers of such lands rent, compensation and other charges by criminal intimidation, or who abets the doing of any of the above mentioned acts; and also includes the successors in interest; 

(f) “land grabbing’’ means every activity of grabbing of any land, without any lawful entitlement and with a view to illegally taking possession of such land, or enter into or create illegal tenancies or lease and licences agreements construct unauthorised structures thereon for sale or hire, or give such lands to any person on rental or lease and license basis for construction, or use and occupation, of unauthorised structures; and the term “to grab land’’ shall be construed accordingly;  

(d)”land grabber” means a person or a group of persons who commits land grabbing and includes any person who gives financial aid to any person for taking illegal possession of lands or for construction of unauthorised structures thereon, or who collects or attempts to collect from any occupiers of such lands rent, compensation and other charges by criminal intimidation, or who abets the doing of any of the above mentioned acts, and also includes the successors in-interest;

(g)”land grabbing” means every activity of grabbing of any land (whether belonging to the Government, a local authority, a religious or charitable institution or endowment, including a wakf, or any other private person) by a person or group of persons, without any lawful entitlement and with a view to illegally taking possession of such lands, or enter into or create illegal tenancies or lease and licence agreements or any other illegal agreements in respect of such lands, or to construct unauthorised structures thereon for sale or hire, or give such lands to any person on rental or lease and licence basis for construction, or use and occupation, of unauthorised structures; and the term “to grab land” shall be construed accordingly;

Punishment The punishment for the offence is imprisonment for a term which shall not be less than ten years but which may extend to 14 years and with fine which may extend to x. The punishment for the contravention of any provision under this act is imprisonment for a term which shall not less than one year but which may extend to three years and with fine which may extend to twenty five thousand rupees. The punishment for the contravention of any provision under this act is imprisonment for a term which shall not less than six months but which may extend upto five years and with fine which may extend to five thousand rupees.
Safeguards Section 16 of this act provides power to make rules ; 

(1) The State Government may, by notification in the Official Gazette, make rules to carry out the purposes of this Act. 

(2) All rules made under this section shall be laid for not less than thirty days before the State Legislature as soon as possible after they are made, and shall be subject to such modifications as the legislature may make during the session in which they are so laid or the session immediately following.

Rule 5. Inquiry by the Committee:

  1. On receipt of the application, the Collector shall entrust the inquiry to the concerned Prant Officer and / or any other officer including a Police Officer as may be deemed fit. 
  2. In case of Government Land or in case where the person who has allegedly grabbed the land is headstrong person, the collector or the State Government may take suo-moto cognizance and action shall thereafter be taken in accordance with sub-rule (3) to (10).
  3. On receipt of the application, the Prant Officer or the officer to whom the application has been referred to shall ask concerned authorities to furnish report containing all the details and permission issued by them along with relevant documents within 5 days. 
  4. An inquiry shall be conducted for the prima facie locus standi of the applicant based on reports and records received from different authorities; and a conclusion to be derived whether a land title can be established.
  5.  An inquiry shall be conducted by the Prant Officer or the officer to whom application has been referred to, whether Land in question has been occupied or attempted to occupy, in unauthorized manner, with the use of force, threat, intimidation and deceit or by cheating, fraud and/or forgery. 
  6. The Prant Officer or the officer authorized by Collector shall submit the final report to the Collector within 21 days from the date of the receipt of the application. The report shall state whether prima facie case under the Act is established or not; The committee may also ask for further inquiry if it considers necessary. 
  7. In case of unauthorized, continued occupancy of the land which was allotted or leased to any person by the Government with conditions attached, is cancelled by the competent authority or on the expiry of lease and renewal of application for the same is not under consideration then under such circumstances the committee may consider such act as land grabbing. 
  8. The committee shall consider the inquiry report and decide further course of action including filing an FIR within 21 days. 
  9. As soon as the committee directs police to file FIR, it should be filed within 7 working days.
  10. The concerned investigation officer shall file final report before the special court within 30 days from the date of First Information Report.

Rule 6. Power and Functions of the Committee :

  1. The Committee shall meet at least once in fifteen days, at such time and place as the Chairman may decide;  All the applications/ complaints received, in prescribed Form, by the District Collector shall be placed before the Committee through the Member Secretary; 
  2. The Committee shall scrutinize the inquiry report and decide further course of action and if deemed fit refer the case to the Special Court to initiate court proceedings under section 9 and decision of the Committee shall be conveyed to the applicant.
In section 2 of the Karnataka Land Grabbing Prohibition Act, 2011, (Karnataka Act 38 of 2014) (hereinafter referred to as the Principal Act) after clause (d), the following proviso shall be and shall always be deemed to have been inserted, namely:-

“Provided that ‘land’ shall not include lands in respect of which applications for grant are pending on the date of commencement of this Ordinance,-

  1. under sections 94A, 94B, 94C and 94CC of the Karnataka Land Revenue Act, 1964 (Karnataka Act 12 of 1964);
  2. under the Scheduled Tribes and other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 (Central Act 2 of 2007);”
It applies to all lands situated within the limits of urban agglomeration as defined in clause (n) of Section 2 of the Urban Land (Ceiling and Regulation) Act, 1976 and a Municipality. 

It applies also to any other lands situated in such areas as the Government may, by notification specify having due regard to: —

   a. the urbanisable nature of the land; or 

  b. the usefulness or potential usefulness of such land for commercial, industrial, pisciculture of Prawn-culture purpose.

Rule 9. Notice to the Land Grabbers:- 

  1. The Special Court shall, before passing an order under sub-section (7) of Section 8 of the Act, and the Special Tribunal shall before passing an order under sub-section (5) of Section 7A of the Act, give notice to the land grabber in Form IV-A.
  2. The Special Tribunal shall, before passing an order under sub-section (5) of Section 7-A of the Act, give notice to the land grabber in Form IVB.

Rule 15 Procedure for taking possession:-

  1. The Court/Tribunal shall communicate its final decision or order to the affected parties and also to the Revenue Divisional Officer to give effect to the decisions of the Court.
  2. The Revenue Divisional Officer shall on receipt of the order of the Court issue or arrange to issue a direction in Form V deputing any Officer not lower in rank than a Revenue Inspector to take possession of the grabbed land on behalf of the Court and deliver possession of the land to the person ordered by the Court.
  3. A copy of the authorisation issued by the Revenue Divisional Officer shall be served or arranged to be served on the person in possession or occupation of the land, as the case may be.
  4. Where the person in possession or occupation of the grabbed land delivers possession thereof voluntarily, the officer so deputed by the Revenue Divisional Officer under sub-rule (2) shall record a statement of the person to that effect and also record a certificate in Form VI and send the same to the Revenue Divisional Officer concerned and the Court.
  5. Where the person in possession or occupation of the grabbed land fails to deliver possession of that land voluntarily the officer, so deputed under sub-rule (2) may enter on the land and take possession thereof on behalf of the Revenue Divisional Officer after removing any obstruction or unauthorised occupant, if any, on such land, by taking such Police assistance as may be necessary and record a certificate in Form VII duly attested by two witnesses.
  6. The certificate in Form VII shall be prepared in triplicate and one copy each shall be sent to the Special Court/Revenue Divisional Officer/Mandal Revenue Officer.
  7. Where the Revenue Divisional Officer directs the Officer so deputed to deliver possession to the person ordered by the Court, the Officer shall accordingly deliver possession and record a certificate to that effect.
  8. Where the Revenue Divisional Officer has been directed that the land taken possession of shall be kept under his control and management, the officer so deputed under sub-rule (2) shall, take possession of the land and report the same to the Revenue Divisional Officer and seek his directions.
  9. An order granting compensation and also profits and cost of redelivery passed in favour of an owner other than the Government, may be executed by the Court through the Tribunal in accordance with the provision of the Code of Civil Procedure, 1908.
  10. The Tribunal shall execute its order granting compensation and also profits and costs of redelivery passed in favour of an owner other than the Government in accordance with the provisions of the Code of Civil Procedure, 1908.
Constitution of special court The State Government may, with the concurrence of the Chief Justice of the High Court of Gujarat, by notification in the Official Gazette constitute one or more Special Courts for such area or areas, or for such cases or class or group of cases, as may be specified in the notification.

 

If any question arises as to the jurisdiction of any Special Court, it shall be referred to the State Government, whose decision in the matter will be final. 

A Special Court shall be presided over by a judge to be appointed by the State Government with the concurrence of the Chief Justice of the High Court of Gujarat. 

The State Government may also appoint, with the concurrence of the Chief Justice of the High Court of Gujarat, Additional Judges to exercise jurisdiction of the Special Court. 

A person cannot be qualified for appointment as a Judge or an Additional Judge of a Special Court unless he immediately before such appointment, is or has been a Sessions Judge or a District Judge. 

The Government from time to time may, by notification in the Official Gazette, reconstitute the Special Courts constituted under sub-section (1) and may, at any time abolish such Special Courts by a like notification. 

A Judge of the Special Court shall hold office for a term of three years from the date on which he enters upon his office, or until the Special Court is reconstituted or abolished under sub-section (6), whichever is earlier.

      The Special Court consists of a Chairman and four other members, which is appointed by the Government.

  1. Chairman- who is or was a judge of a High Court
  2. Two Judicial Members- who are or were District Judges 
  3. Two Revenue Members-   who hold or have held a post not below the rank of a Deputy Commissioner of the District 

    Provided that the appointment of a person who was a Judge of a High Court as the Chairman of the Special Court shall be made after consultation with the Chief Justice of the High Court.

The Government has power to constitute Additional Bench of the Special Court, if it finds necessary.

The Chairman or other member shall hold office as such for a term of three years from the date on which he enters upon his office, or until the Special Court is reconstituted whichever is later.

A Special Court shall consist of a Chairman and four other members, to be appointed by the Government.

  1. Chairman- who is or was a judge of a High Court
  2. Two Judicial Members- who are or were District Judges 
  3. Two Revenue Members- who hold or have held a post not below the rank of a District Collector.

     Provided that the appointment of a person who was a Judge of a High Court as the Chairman of the Special Court shall be made after consultation with the Chief Justice of the High Court concerned;

      Provided further that where sitting judge of a High Court is to be appointed as Chairman, such appointment shall be made after nomination by the Chief Justice of the High Court concerned , with the concurrence of the Chief Justice of India.

The Chairman or other member shall hold office as such for a

term of two years from the date on which he enters upon his office, or until the Special Court is reconstituted or abolished under sub-section (4), whichever is earlier.

Special Tribunal and its powers, etc : Every Special Tribunal have power to try all cases not taken cognizance of by the Special Court relating to any alleged act  land grabbing, or with respect to the ownership and title to, or lawful possession of the land grabbing, or with respect to the ownership and title to, or lawful possession of the land grabbed whether before or after the commencement of the Andhra Pradesh Land Grabbing (Prohibition)(Amendment) Act, 1987 and brought before it and pass such orders (including orders byway raf interim directions) as it deems fit : Provided that, if in the opinion of the Special Tribunal, any case brought before it is prima facie frivolous, or vexatious it shall reject the same without any further enquiry:

Provided further that if in the opinion of the Special Tribunal any case brought before it is a fit case to be tried by the Special Court it may

for reasons to be recorded by it transfer the case to the Special

Court for its decision in the matter.

 

CONCLUSION:

Thus, in view of what is discussed in the present article, it is clear that the act suffers from several infirmities, which makes the act in conflict with various other laws of the land and the constitution of India. It is also clear that identical legislations in other states  have more procedural safeguards against arbitrary exercise of powers under the Land Grabbing Act by the administrative wing of the State Government. Further, the act of Andhra Pradesh also gives an opportunity to vacate and in case of failure to vacate, an opportunity to hear before taking cognizance of the criminal case. Therefore, it is believed that the land grabbing act of Gujarat needs several changes especially in the rules part, which is bereft of procedural safeguards and additionally, certain draconian provisions like providing a remedy under land grabbing act even in case of private dispute and not considering the law of limitation along with several other conflicting provisions of the land grabbing act with other central as well as state legislations, makes is a subject matter of judicial review by the High Court of Gujarat. 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 State Government that has many stringent provisions including jail term from 10 to 14 years, registration of offences with retrospective effects, among others. It is hoped that the State Government itself revamps the law to make it consistent with other substantive and procedural laws along with diluting the draconian provisions of the law. 

 

Author: Vinay Sachdev & Dhruvil Kanabar

Editor: Adv. Aditya Bhatt & Adv. Chandni Joshi

 

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