(PER : HONOURABLE THE CHIEF JUSTICE MRS. JUSTICE SUNITA AGARWAL)

1. For the convenience of readers, the judgment is divided into parts as indicated in the table of contents, given hereinbelow :-

Part VI Pari materia Enactment of other States 408 Part VII Conclusion : Operative portion :- 412

2. In this group of writ petitions invoking the jurisdiction of this Court under Article 226 of the Constitution of India, the subject matter of challenge is the constitutionality of the Gujarat Land Grabbing (Prohibition) Act, 2020 (Gujarat Act No.11 of 2020) and Gujarat Land Grabbing (Prohibition) Rules, 2020 made thereunder.

3. With the consent of the learned counsel for the parties, we have deliberated on the only question of vires of the Gujarat Land Grabbing (Prohibition) Act, 2020 ("Land Grabbing Act' 2020" or "Act' 2020" for short) and the Gujarat Land Grabbing (Prohibition) Rules, 2020 ("Land Grabbing Rules' 2020") made thereunder, and have not entered into the Page 80 of 417 Downloaded on : Mon May 13 20:36:50 IST 2024 NEUTRAL CITATION C/SCA/2995/2021 CAV JUDGMENT DATED: 09/05/2024 undefined merits of the individual claims of the petitioners herein.

4. The common prayer made in this bunch of writ petitions, to hold and declare the provisions of the Land Grabbing Act' 2020 and the Land Grabbing Rules' 2020 made thereunder as ultra vires to the Constitution of India, being violative of Articles 14 , 20 , 21 and Article 254 of the Constitution of India, has been pressed into service and the arguments of the learned counsels for the parties have been heard on this issue as a common question of law. All the writ petitions having been heard together, as such, are being decided by this common judgment on the above-referred issue.

1 - PREFACE

5. The Gujarat Land Grabbing (Prohibition) Act, 2020 , is an Act of the Gujarat legislature and having received the assent of the Governor, it was published in the Gujarat Government Gazette on 9th October, 2020. The long title of the Act reads as under:-

6. The Act extends to the whole of the State of Gujarat and has been enforced with effect from Page 81 of 417 Downloaded on : Mon May 13 20:36:50 IST 2024 NEUTRAL CITATION C/SCA/2995/2021 CAV JUDGMENT DATED: 09/05/2024 undefined 29.08.2020 (29 August, 2020, by virtue of Sub- section (3) of Section 1 .

7. Section 2 of the Act provides definition of "land", "land grabber" and "land grabbing".

8. Section 3 of the Land Grabbing Act' 2020 makes "land grabbing" to be unlawful by stating that the land grabbing in any form shall be prohibited and declared unlawful and any activity connected with or arising out of "land grabbing" shall be an offence punishable under this Act (Act' 2020).

9. Section 4 is couched in negative language casting prohibition on "land grabbing" and provides that no person shall commit or cause to be committed "land grabbing" by himself or through any other person. Sub-section (2) of Section 4 further provides that any person who, on or after the commencement of the Act, continues to be in occupation of a "grabbed land" belonging to the Government, local authority, religious or charitable institution or endowment or other private person, otherwise than a lawful tenant shall be guilty of the offence under the Act. Sub-section (3) of Section 4 provides for punishment and penalty for commission of offence of "land Page 82 of 417 Downloaded on : Mon May 13 20:36:50 IST 2024 NEUTRAL CITATION C/SCA/2995/2021 CAV JUDGMENT DATED: 09/05/2024 undefined grabbing", for contravention of the provisions of Sub-section (1) or Sub-section (2) of Section 4 .

10. Section 5 provides for punishment with imprisonment for 10 years on conviction and penalty in the form of fine, for other offences in connection with "land grabbing", such as sale or allotment of any land grabbed; including instigating or inciting any person for "land grabbing"; use or cause or permit to be used not only any land grabbed for the purposes connected with sale or allotment; entering into agreement for construction of any structure or buildings on the grabbed land; causes or procure or attempts to procure any person to do any of the aforementioned Acts.

11. Section 6 deals with the commission of offences under the Land Grabbing Act' 2020 by a person which is a Company.

12. Section 7 provides for constitution of Special Courts by the State Government with the concurrence of the Chief Justice of the High Court of Gujarat and provides that where any question arises as to the jurisdiction of any Special Court, it shall be referred to the Page 83 of 417 Downloaded on : Mon May 13 20:36:50 IST 2024 NEUTRAL CITATION C/SCA/2995/2021 CAV JUDGMENT DATED: 09/05/2024 undefined State Government, whose decision in the matter shall be final. The constitution of the Special Court and the qualification of the persons manning the Special Court having been provided therein from Sub-section (3) to Sub- section (7).

13. Section 9(1) confers power on the Special Courts to take cognizance and try every case arising out of any alleged act of land grabbing, either suo motu or on an application made by any person. It further confers power on the Special Court to try any dispute with respect to the ownership and title or lawful possession of the land grabbed, whether before or after commencement of the Act.

14. Sub-section (2) of Section 9 further clarifies that notwithstanding anything contained in the Code of Civil Procedure , 1908, any case in respect of an alleged act of "land grabbing"

15. Sub-section (3) of Section 9 further states that notwithstanding anything in the Code of Civil Procedure , 1908, the Special Court may Page 84 of 417 Downloaded on : Mon May 13 20:36:50 IST 2024 NEUTRAL CITATION C/SCA/2995/2021 CAV JUDGMENT DATED: 09/05/2024 undefined follow its own procedure in conformity with the principles of natural justice and fair play and subject to the provisions of the Act' 2020 and the Rules made thereunder while deciding the civil liability.

16. Sub-section (4) of Section 9 confers power on the Special Court to try all offences punishable under the Act, notwithstanding anything in the Code of Criminal Procedure .

17. Sub-section (5) of Section 9 further confers power on the Special Court to mould its own procedure to decide both civil and criminal proceedings, to determine civil and criminal liability against a "land grabber".

18. Sub-section (6) of Section 9 provides timeline for disposal of the cases, cognizance of which has been taken by the Special Court under Sub- section (1), either suo motu or on application made by any person.

19. Sub-section (7) of Section 9 contains two provisos, requiring the Special Court to notify the fact of taking cognizance under the Act by public notice and invite objections from any person by pubic notice and further cause a notice of taking cognizance of the Page 85 of 417 Downloaded on : Mon May 13 20:36:50 IST 2024 NEUTRAL CITATION C/SCA/2995/2021 CAV JUDGMENT DATED: 09/05/2024 undefined case under the Act' 2020, served on any person known or believed to be interested in the land.

20. Sub-section (7) of Section 9 further states that finding of the Special Court with regard to any alleged act of "land grabbing" shall be conclusive proof of the fact of "land grabbing" and of the person who committed such grabbing and every judgment of the Special Court with regard to the determination of title and ownership to a lawful person or any "land grabbed" shall be binding on all persons having interest in such land.

21. Sub-section (8) of Section 9 provides that when an offence of "land grabbing" is proved, the Special Court may order that possession of the land be restored to the person having interest in such land, after evicting by force, if necessary, any other person who may be in possession of the property.

22. Sub-section (9) of Section 9 confers power on the Special Court to award compensation in terms of money for wrongful possession of the land grabbed and recover as arrears of land revenue in case Government is the owner or as decree of the Civil Court, in any other case, Page 86 of 417 Downloaded on : Mon May 13 20:36:50 IST 2024 NEUTRAL CITATION C/SCA/2995/2021 CAV JUDGMENT DATED: 09/05/2024 undefined which is to be executed by the Special Court. Proviso to Sub-section (9) states that before passing order to award compensation, opportunity of making representation or of adducing evidence, shall be granted to the land grabber and representation and evidence, if any, submitted shall be duly considered.

23. Section 10 provides for application of the provisions of the Code of Civil Procedure , 1908, and the Code of Criminal Procedure , 1973, to the proceedings before the Special Court and confers power of Civil Court and Court of Sessions upon the Special Court conducting proceedings under the Land Grabbing Act' 2020.

24. Section 12A provides remedy of Appeal to the High Court against the final judgment and order passed by the Special Court under the Land Grabbing Act, 2020 and states that separate appeals shall lie from the judgment and order made by the Special Court in the civil or criminal proceedings.

25. Section 15 gives overriding effect to the Land Grabbing Act' 2020, on other laws for time being in force or custom, usage or agreement or decree or order of a court or any other Page 87 of 417 Downloaded on : Mon May 13 20:36:50 IST 2024 NEUTRAL CITATION C/SCA/2995/2021 CAV JUDGMENT DATED: 09/05/2024 undefined tribunal or authority.

26. Section 16 confers power on the State Government to make Rules to carry out the purposes of the Act.

27. Section 17 makes any transaction relating to alienation of the land grabbed or any part thereof, which has taken place, whether before or after the commencement of the Act, except to the extent ordered by the Special Court, to be null and void.

28. Section 11 provides for shifting of burden of proof on a person who is alleged to have grabbed the land, on a prima facie proof of the land being owned by the Government or by a private person other than the person who is alleged to have grabbed the land.

29. Sub-section (2) of Section 11 provides for inquiry into the pecuniary resources of a land grabber or any person on his behalf and to draw a presumption that such property or pecuniary resources have been acquired or derived by his activities as a land grabber, unless contrary is proved.

30. Section 12(a) further states that the police officer shall not record any information about Page 88 of 417 Downloaded on : Mon May 13 20:36:50 IST 2024 NEUTRAL CITATION C/SCA/2995/2021 CAV JUDGMENT DATED: 09/05/2024 undefined the commission of offence under the Land Grabbing Act' 2020 without prior approval of the District Collector in consultation with the Committee notified by the State Government.

31. The Committee defined under Section 2(a) notified by the State Government is to be constituted under the Chairmanship of the District Collector for the purposes of the Land Grabbing Act' 2020.

32. The Rules namely, the Gujarat Land Grabbing (Prohibition) Rules, 2020, framed in exercise of the power conferred by Sub-section (1) of Section 16 of the Land Grabbing Act' 2020 has been notified by the Revenue Department in the Official Gazette dated 16.12.2020 providing for the procedure for making application; inquiry by the Committee; power and functions of the Committee and provision for Special Court to refer cases to the Committee, cognizance of which has been taken by it either suo motu or an application made by any person to the Court, asking for scrutiny report from the Committee after inquiry as per Rule 5. The form of application as per the Rule 3(1) has also been provided therein.

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33. By the notification dated 06.11.2020 of the Legal Department, the Government of Gujarat, in exercise of the power conferred by Sub- section (1) of Section 7 of the Land Grabbing Act' 2020, with the concurrence of the Chief Justice of the High Court of Gujarat has notified for the designation of the Judge, City Civil Court, Ahmedabad and the Court of Senior most Additional District Judge of each district at the headquarters in the State of Gujarat, to be Special Courts 'to try the offences registered under the Act'.

34. By the notification, published in the Gujarat Government Gazette dated 16th December, 2020 in Part - B, the Government of Gujarat in exercise of the power conferred by Section 2(a) of the Act, 2022, has provided for constitution of the District Committee for each district, consisting of the District Collector as the Chairman with the members in the following manner :-

Secretary The Notification provides that the constitution of the said Committee shall be there until further notification.

35. The aforesaid provisions of the Land Grabbing Act' 2020 and the Rules made thereunder as also the Government Notifications for designation of the Special Court and constitution of the Committee have been challenged by the petitioners herein with the contentions that the entire Act is unconstitutional, invalid, ultra vires, violative of Articles 14 , 20 , 21 , 254 of the Constitution of India as also of the basic structure of the Constitution of India. The contention is that the provisions of the Act and the Rules made thereunder are vague, ambiguous, unworkable, contrary to the Rule of law, Rule of propriety and manifestly arbitrary. The entire Act, as such, is required to be declared as invalid constitutionally.

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36. The arguments made on different aspects by the learned counsels for the parties elaborating the issues of challenge, are to be aligned issue-wise for convenience in the following manner :-

(ii) The Act is repugnant to the Central Legislations, inter alia :-

consequences of any action undertaken before its promulgation and hence, ultra vires Article 20 of the Constitution.

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(iv) The Act is hit by Article 14 of the Constitution on the principles of classification of having nexus with the object, the principle of manifest arbitrariness, mischief rule and treating unequals as equal.

(v) The Act is ultra vires Articles 13 , 14 , 19 and 21 of the Constitution on the doctrine of proportionality and sentencing as it prescribes minimum sentence of imprisonment for a term of 10 years for every act of land grabbing, which is harsh, disproportionate and manifestly arbitrary.

(vi) The Act deprives the benefit of probation to convicts under the Probation of Offenders Act, 1958 .

Other ancilliary points :-

Part I : Presidential Assent And Repugnancy - Article 254 of the Constitution Of India (A) Arguments of the Learned Counsels for the Parties Mr. Asim Pandya, learned senior advocate, Mr. Tejas Barot, Mr. Virat Popat, Mr. Masoom Shah, Mr. Vishwas Shah, Mr. Rashesh Parikh and Mr. Vikram Thakore, learned advocates have addressed the Court on the issue.

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37. It is argued by Mr.Asim Pandya, learned senior counsel for the petitioners that the Gujarat Land Grabbing (Prohibition) Act, 2020 violates Article 254 of the Constitution of India for the following reasons:-

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(xi) The impugned law further encroaches upon the provisions of Section 27 of the Limitation Act, the principle of adverse possession in relation to an immovable property. It defies Articles 64 , 65 , 66 , 67 of the Limitation Act and renders the period of institution of suit for possession prescribed in the Limitation Act as nugatory.

(xii) No limitation is prescribed for institution of the original proceedings under the impugned Act. Quite contrary to the prevalent laws that provides for initiating proceedings at the instance of the party aggrieved, suo motu initiation of proceedings with regard to even private land disputes has been recognised. The result is that a time barred suit or action is allowed to be initiated and the rights created/accrued in favour of the other side by operation of law is nullified.

(xiii) Only limitation provided under Section 12A(c) to file an appeal by a person aggrieved against the final judgment and order passed by the Special Court is 30 days from the date on which the impugned judgment or order has been made. Sub-section (3) of Page 99 of 417 Downloaded on : Mon May 13 20:36:50 IST 2024 NEUTRAL CITATION C/SCA/2995/2021 CAV JUDGMENT DATED: 09/05/2024 undefined Section 12A also prescribes for the period of 30 days to be reckoned from the respective date of the judgment and the order passed in the proceedings. Proviso to Sub-section (3) further limits the competence of the Special Court to condone the delay in preferring appeal upto a further period of 60 days, that too in a case where the person aggrieved is prevented by sufficient cause from preferring the appeal within the aforesaid time period. By providing limitation of 30 days for filing an appeal under the Act, the State Legislature has encroached upon the provisions of Limitation Act , which is 90 days from the date of the decree or order under Article 116 of the Limitation Act and 60 days for an appeal under the Code of Criminal Procedure against any sentence other than death sentence or any order from the date of sentence or the order.

(xiv) The impugned law further encroaches upon the provisions of Sections 5 and 6 of the Specific Relief Act, 1963 which provides for recovery of possession of immovable property based on mere possessory title by bringing a suit in the manner provided in the Code of Civil Procedure by any person who has been dispossessed otherwise than in due course of Page 100 of 417 Downloaded on : Mon May 13 20:36:50 IST 2024 NEUTRAL CITATION C/SCA/2995/2021 CAV JUDGMENT DATED: 09/05/2024 undefined law.

If the provisions of the Gujarat Land Grabbing Act ' 2020 are given effect to, enforcement of the decree or recovery of the possession under Section 6 would be an offence and the decree of the court passed in favour of the person based on the possessory title would be nullified. The provisions of Sections 37, 38 and 39 of grant of temporary and perpetual injunction as also mandatory injunction are nullified by Section 15 of the Land Grabbing Act' 2020, as injunction order, if any, cannot be enforced for the overriding effect given to the provisions of the Land Grabbing Act' 2020 over the decree or order of a Court of law or any tribunal or authority.

(xv ) The provisions contained in Section 9 giving overriding effect to Act '2020 over the provisions of the Code of Civil Procedure and Criminal Procedure Code completely obliterate hierarchy of the Courts under the Code of Civil Procedure and Criminal Procedure Code . The Special Courts are created and all procedures to be undertaken by the Magistrate under Cr.P.C . are to be conducted by the Special Courts. Section 9 provides for a different procedure than the procedure Page 101 of 417 Downloaded on : Mon May 13 20:36:50 IST 2024 NEUTRAL CITATION C/SCA/2995/2021 CAV JUDGMENT DATED: 09/05/2024 undefined prescribed in Code of Civil Procedure or Criminal Procedure Code for trying civil and criminal proceedings with respect to the ownership and title or lawful possession of a person over the land defined therein. Special set of Rules of Evidence have been prescribed under Section 9(5) and Section 11 of the impugned Act.

38. In the crux, it was argued that the impugned law is repugnant to the Central laws, viz, Section 5 and Section 27 of the Limitation Act; Sections 5 , 6 , 37 , 38 and 39 of the Specific Relief Act; Section 2(2) and Section 11 of the Code of Civil Procedure; Section 53A and Section 58 of the Transfer of Property Act and Sections 6 and 145 of the Criminal Procedure Code.

39. It was argued that the State of Gujarat while enacting the Gujarat Land Grabbing (Prohibition) Act, 2020 was required to take assent of the President of India as has been taken by the State of Karnataka, Assam and Andhra Pradesh while enacting the Land Grabbing laws for their respective States. The assertion of the State of the Gujarat that the impugned law falls in Entry 18 and 64 of the State List, is incorrect. The impugned Page 102 of 417 Downloaded on : Mon May 13 20:36:50 IST 2024 NEUTRAL CITATION C/SCA/2995/2021 CAV JUDGMENT DATED: 09/05/2024 undefined legislation falls in Entry 1 and 6 of List III (Concurrent List). Even Entry 11A which was initially in the State list has been shifted to the Concurrent List by 42nd Amendment of the Constitution of India and the matters pertaining to Administration of Justice, Constitution and Organisation of all Courts, except the Supreme Court and High Court, now fall in the Concurrent List (List III) of the Seventh Schedule.

40. The contention is that Article 254 of the Constitution of India clearly lays down where there is a direct collision/conflict or repugnancy between the provisions of law made by the State Legislature and that made by the Parliament with respect to the matters enumerated in the Concurrent List, then, subject to the provisions of Clause (2) the State law would be void to the extent of repugnancy.

41. The contention is that the matter of taking of Presidential assent under Article 254 (2) of the Constitution of India is not an exercise of legislative power of the President as contemplated under Article 123 of the Constitution, but is a part of legislative procedure. The question whether the procedure Page 103 of 417 Downloaded on : Mon May 13 20:36:50 IST 2024 NEUTRAL CITATION C/SCA/2995/2021 CAV JUDGMENT DATED: 09/05/2024 undefined prescribed by the Constitution before enacting the law is followed or not can always be looked into by the Court in exercise of the power of judicial review. If such a procedure is not followed, such law can be held to be invalid as a whole.

42. Reliance is placed on the decision of the Apex Court in Kaiser-I-Hind Pvt. Ltd. and Another Vs. National Textile Corpn. (Maharashtra North) Ltd. And Others1 , to submit that while considering the conflict between the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 , and the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 , the question as to whether it is permissible for a Court of law to inquire into and ascertain the circumstances in which the assent under Article 254(2) was given and hold as a result of such consideration that the State law even with respect to a matter enumerated under the Concurrent List (if having been reserved for the consideration of the President and having received his assent) does not prevail in that State. Meaning thereby, the manner in which the assent was to be taken and the efficacy of the President's assent, if accorded, had been 1 [( 2002) 8 SCC 182] Kaiser-I-Hind Pvt. Ltd. and Another Vs. National Textile Corpn. (Maharashtra North) Ltd. and Others Page 104 of 417 Downloaded on : Mon May 13 20:36:50 IST 2024 NEUTRAL CITATION C/SCA/2995/2021 CAV JUDGMENT DATED: 09/05/2024 undefined examined by the Apex Court by observing that the question whether the procedure prescribed by the Constitution before enacting the law is followed or not can always be looked into by the Court. It was submitted that in the said case, the Apex Court has held that granting of assent under Article 254 (2) is not an exercise of legislative power of the President, as contemplated under Article 123 , but is part of legislative procedure.

43. Reliance is further placed on the decision of the Apex Court in Rajiv Sarin vs. State of Uttarakhand2 , to submit that the assent of the President under Article 254(2) of the Constitution is not a matter of idle formality. The President has, at least, to be apprised of the reason why his assent is sought, if there is any special reason for doing so. If the assent is sought and given in general terms, it will be effective for all purposes.

44. Reference has been made to the decision of the Apex Court in Forum for People's Collective Efforts (FPCE) vs. State of West Bengal 3 , to submit that applying the test to ascertain the 2 [( 2011) 8 SCC 708] Rajiv Sarin vs. State of Uttarakhand 3 [(2021) 8 SCC 599] Forum for People's Collective Efforts (FPCE) vs. State of West Bengal Page 105 of 417 Downloaded on : Mon May 13 20:36:50 IST 2024 NEUTRAL CITATION C/SCA/2995/2021 CAV JUDGMENT DATED: 09/05/2024 undefined repugnancy between the State Act, viz., the West Bengal Housing Industry Regulation Act, 2017 and Parliamentary enactment, viz., the Real Estate (Regulation and Development) Act, 2016 , it was held therein that before enactment of the West Bengal Housing Industry Regulation Act , Presidential assent under Article 254(2) of the Constitution has not been obtained though it was necessary as the State Act was going to occupy the same field as RERA Act , a law enacted by the Parliament. The twin test laid down by the Apex Court in Rajiv Sarin vs. State of Uttarakhand2 have been applied therein to hold that since the State law did not have Presidential assent and was repugnant to RERA under Article 254 and in view of admission of the State that the Act enacted by it comes in List III (the same as RERA), it was unconstitutional.

45. Further reference has been made to the decision of the Apex Court in Yogendra Kumar Jaishwal vs. State of Bihar4 where the constitutional validity of the Orissa Special Court Act, 2006 , and the Bihar Special Court Act, 2009 , was tested, in the wake of the decision of the High Court of Orissa and Cuttack and the High Court of Patna to uphold 4 [(2016) 3 SCC 183] Yogendra Kumar Jaishwal vs. State of Bihar Page 106 of 417 Downloaded on : Mon May 13 20:36:50 IST 2024 NEUTRAL CITATION C/SCA/2995/2021 CAV JUDGMENT DATED: 09/05/2024 undefined the validity of the said Acts, respectively. It was noted therein that the Orissa Act had been assented to by the President of India. It was noted that the entire Bill was sent to the President for obtaining assent and, thus, it can safely be concluded that the President was apprised of the reason when the assent was sought. The assent has been given in general terms so as to be effective for all purposes. It, therefore, cannot be said that the general assent by the President was not obtained. It was submitted that for the fact that the Orissa Act had obtained Presidential assent, its constitutional validity was upheld.

46. We may note that all the above noted judgments have been placed by Mr. Asim Pandya, learned senior counsel appearing for the petitioners to impress upon us as to what would be the effect of Presidential assent in the wake of provisions of Article 254(2) of the Constitution of India and as to how it can be ascertained that the Presidential assent has been granted.

47. The twin test to determine the repugnancy under Article 254 of the Constitution of India, as laid down in Rajiv Sarin2, have been pressed into service to submit that with Page 107 of 417 Downloaded on : Mon May 13 20:36:50 IST 2024 NEUTRAL CITATION C/SCA/2995/2021 CAV JUDGMENT DATED: 09/05/2024 undefined regard to the Land Grabbing Act' 2020, it has been demonstrated that the Act is repugnant to the provisions of the Civil Procedure Code, 1908, Criminal Procedure Code , 1973, the Limitation Act, 1963 , the Transfer of Property Act, 1882 , the Specific Relief Act, 1963 , the Indian Evidence Act, 1872 and Indian Contract Act, 1872 , inasmuch as, the provisions of the Act negate the provisions of aforesaid Central Acts occupying the fields. This enactment negates various provisions of the aforesaid Central Acts occupying the fields, it is, thus, to be held as constitutionally invalid or ultra vires to the Constitution of India. .

48. Adding to the contentions of Mr. Asim Pandya, Mr. Tejas Barot, learned counsel for the petitioner would submit that a Special Law, which is repugnant to the general law applicable to the field, would require Presidential assent to stand as a valid law.

49. Reference has been made to the communication sent by the Principal Secretary to the Hon'ble Governor of Gujarat to seek Presidential assent before enactment of the Gujarat Control of Terrorism and Organised Crime Bill, 2015 by Mr. Masoom K. Shah, the learned advocate for the petitioner to submit that noticing that Page 108 of 417 Downloaded on : Mon May 13 20:36:50 IST 2024 NEUTRAL CITATION C/SCA/2995/2021 CAV JUDGMENT DATED: 09/05/2024 undefined the said bill falls under Entry Nos. 1, 2, 6, 11A, 12 and 46 in List III apart from Entry No.7, 64 and 65 in List II of the Seventh Schedule to the Constitution of India, and it was repugnant to the provisions of the Indian Evidence Act, 1872 , the Transfer of Property Act, 1882 , Civil Procedure Code, 1908, Criminal Procedure Code , 1973, Information Technology Act, 2000 , the existing laws passed by the Parliament, it was felt that there was a necessity for obtaining assent of the President of India to the Bill.

50. The contention is that the Gujarat Control of Terrorism and Organised Crime Act, 2015 was enacted after obtaining Presidential assent noticing that it has encroached upon the fields occupied by the Central legislations. Similar is the position with respect to the Land Grabbing Act' 2020, which provides for the constitution of Special Courts by the State Government, strict limitation for filing appeal against the order of Special Courts and a separate set of Rule of Evidence. It is to be held in conflict with Entries No.1, 6, 7, 11A, 13 and 18 of List III of the Seventh Schedule to the Constitution of India and having not received Presidential assent, it is required to be held invalid.

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51. Mr. Masoom Shah, learned counsel for the appellant made a comparative demonstration of the Gujarat Control of Terrorism and Organised Crime Act, 2015, which has been enacted on 05.11.2019, having received the assent of the President of India, to assert that the provisions of the impugned law, viz., Land Grabbing Act' 2020, are comparable to the fields in which the provisions of the Gujarat Control of Terrorism and Organised Crime Act are enacted and from the own stand of the State Government, there being conflict in the subject matter of the Bill, falling in Entries in List III of the Seventh Schedule, the assent of the President was necessary and was, thus, obtained.

52. Mr. Virat Popat, learned advocate has drawn attention of the Court to the decision of the Karnataka High Court in upholding the constitutional validity of the Karnataka Land Grabbing Prohibition Act, 2011 to assert that the said enactment passed by the State legislature under Entry 18 and 64 of List II of the Seventh Schedule of the Constitution has been enforced after receipt of the assent of the President.

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53. Mr. Kamal B. Trivedi, learned Advocate General in his opening argument has taken the Court to the general principles laid down by the Apex Court while dealing with the challenge to the constitutional validity of a legislation. We may record that the said aspect would be looked into by us at an appropriate stage of this judgment. At this juncture, coming to the answer to the contentions of the learned counsels for the parties on the issue of Presidential assent and repugnancy, noted hereinabove, in rebuttal, it was argued by the learned Advocate General that :-

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(ii) The question of repugnancy can only arise in connection with subjects enumerated in List III (the Concurrent List) as regards which both the Union and the State legislatures have concurrent powers, in case of conflict between the laws made by both the legislatures relating to the same subject matter in three eventualities :-

(vii) The Gujarat Act is not repugnant to Sections 6 , 38 and 39 of the Specific Relief Act, 1963 as asserted by the learned counsels for the petitioners, rather, the provisions of Section 6 of the Specific Relief Act and that of the Gujarat Act are complementing to each other, inasmuch as, Section 6(4) of the Specific Relief Act provides that the provisions of Sub-section (1) of Section 6 shall not bar any person from filing suit to establish his title to protect the property 5 [(1988( 4 SCC 324] Accountant & Secretarial Services Ltd. vs. Union of India 6 [(1990) 4 SCC 406] Ashok Marketing Ltd. vs. Punjab National Bank Page 114 of 417 Downloaded on : Mon May 13 20:36:50 IST 2024 NEUTRAL CITATION C/SCA/2995/2021 CAV JUDGMENT DATED: 09/05/2024 undefined and to recover possession thereof. This provision, thus, does not restrict the complainant from initiating proceedings under the Gujarat Act whereby the possession can be restored by following the procedure contained therein.

(viii) Similarly, there is no conflict or repugnancy between Section 38 and Section 39 of the Specific Relief Act, 1963, inasmuch as, any order passed under Sections 38 or 39 of the Specific Relief Act may always be a good defence in the proceedings under the Gujarat Act before the Special Court, the reason being that perpetual injunction or mandatory injunction under Section 38 or mandatory injunction under Section 39 of the Specific Relief Act cannot be granted in favour of any person in absence of any existing legal right. The Gujarat Land Grabbing Act ' 2020, however, proceeds on the principle of taking possession of the land or creating illegal tenancies or lease or license, agreements or transfer or sale, etc., without any lawful entitlement, thereto.

(ix) The Gujarat Act is not repugnant to Section 27 of the Limitation Act, 1963, read with Articles 58 , 64 , 65 , 66 , 67 , 111 and 112 Page 115 of 417 Downloaded on : Mon May 13 20:36:50 IST 2024 NEUTRAL CITATION C/SCA/2995/2021 CAV JUDGMENT DATED: 09/05/2024 undefined of the Schedule to the Limitation Act , the reason being that the Gujarat Act does not exclude the applicability of the Limitation Act at all.

(x) The Gujarat Act cannot be said to be repugnant to Articles 64 and 65 of the Schedule to the Limitation Act, 1963 , as the principle of adverse possession has not been rendered redundant by the Gujarat Act . The defence of adverse possession can also be raised before the Special Court by a person against whom allegations of land grabbing has been made to establish his lawful entitlement to retain his possessory title.

(xi) To substantiate the contentions with regard to the Gujarat Act being relatable to Entry 18 of List II, reliance is placed on the following decisions :-

relatable to Entries 18, 64 and 65 of List II and incidental trenching would not make it repugnant to the Central enactments of List III, reference has been made to the followings decisions :-

counsels for the petitioners that the impugned Act is in conflict with CPC , Cr.P.C . and repugnant to the provisions of IPC , with the aid of the following decisions, it was asserted that the procedure prescribed in CPC and Cr.PC are to be followed to the hilt, save as inconsistency in the statutory regime of the impugned enactment.

55. At the outset, we find it pertinent to deal with the question of the Land Grabbing Act' 2020 being hit by Articles 246 read with 254(2) of the Constitution for want of Presidential assent, on the ground that the Land Grabbing Act' 2020 is repugnant to several Central legislations, inasmuch as, this issue goes to the root of the validity of the impugned Act and if it is well founded, no other question need be gone into. We may note that there is no dispute about the competence Page 118 of 417 Downloaded on : Mon May 13 20:36:50 IST 2024 NEUTRAL CITATION C/SCA/2995/2021 CAV JUDGMENT DATED: 09/05/2024 undefined of the State legislature to enact the impugned Act. The contention of the learned counsels for the petitioners is that since the impugned law made by the legislature of the State is inconsistent, repugnant to the existing central laws, it could have been survived only if it has been enacted after receiving Presidential assent.

56. The stand of the State, however, is that the impugned Act is a relatable to Entry 18 of List II, which is State list and the field to which this law deals with, viz., 'land', i.e., "right in or over land" is exclusively within the scope of Entry 18 of List II. As the impugned Act does not relate to any of the entries in the List III, i.e. concurrent list, there is no question of conflict or repugnancy and as such, no question of seeking Presidential assent arise.

57. It is the argument of the State that the Land Grabbing Act' 2020 is relatable to three entries of List II in the Seventh Schedule of the Constitution of India:-

58. In order to deal with the above, the scope and interpretation of the entries in the Seventh Schedule of the Constitution of India, we may go through the decisions placed by the learned Advocate General.

59. In Megh Raj vs. Allah Rakhia7 , the question was as to whether the Act enacted by the Punjab Legislature, viz. " Punjab Restitution of Mortgaged Land Act ", went beyond the limitation of the Legislature, powers of the Province under the List II. It was urged that the impugned Act therein could not be supported by invoking the concurrent powers of 7 Megh Raj vs. Allah Rakhia (AIR 1947 PC 72) Page 120 of 417 Downloaded on : Mon May 13 20:36:50 IST 2024 NEUTRAL CITATION C/SCA/2995/2021 CAV JUDGMENT DATED: 09/05/2024 undefined the Province under List III, because the provisions, which had to be invoked for the purpose were repugnant to the existing Indian laws and were, thus, invalid under Sections 107 of the Government of India Act, 1935. Item no.21 of the List II, which was a Provincial List under the Government of India Act, 1935 is pari materia to Entry No.18 of List II (State List) in the Seventh Schedule of the Constitution of India.

While interpreting Item No. 21 (pari materia to Entry No. 18), it was observed that the key to Item No. 21 is to be found in the opening word "Land". That word is sufficient in itself to include every form of land, whether agricultural or not. Land indeed is primarily a matter of provincial concern. The land in each province may have its special characteristics in view of which it is necessary to legislate, and there are local customs and traditions in regard to land- holding and particular problems of provincial or local concern which require provincial consideration. It would be strange if the land in a province were to be broken up into separate portions some within and some outside the legislative powers of the Province. Such a conflict of jurisdiction is not to be Page 121 of 417 Downloaded on : Mon May 13 20:36:50 IST 2024 NEUTRAL CITATION C/SCA/2995/2021 CAV JUDGMENT DATED: 09/05/2024 undefined expected.

60. While considering the scope of the Entry, it was noted that Item No.21 is a part of the Constitution and would on ordinary principles receive the widest construction, unless for some reason it is cut down either by the terms of item 21 itself or by other parts of the Constitution which has to be read as a whole. Further, giving meaning to the words in the Entry, viz. Item No.21, it was noted that the "Land", the governing word, is followed by the rest of the item, which goes on to say, "that is to say". These words introduce the most general concept "rights in or over land".

61. This view was followed by the Apex Court in Atmaram vs. State of Punjab8 , wherein it was observed that Entries of the Constitution should on ordinary principles, receive widest consideration. A decision of the Federal Court in United Provinces v. Atiqa Begum9, was referred and relied wherein the Federal Courts speaking through Gwyer, C.J. has observed that items in the several lists of the Seventh Schedule, should not be read in a narrow or restricted sense, and that each general word should be held to extend to all ancillary and subsidiary matters which could fairly and reasonably be said to be comprehended in it.

62. In Union of India vs. Valluri Basavaiah Chaudhary10 , it was held that the subject matter of Entry 18, List II of the Seventh Schedule i.e. "land" covers "land and buildings" and would, therefore, necessarily include "vacant land". It would take in lands of every description, i.e. agricultural land, urban land or any other kind.

[AIR 1959 SC 519] Atmaram vs. State of Punjab 9 [AIR 1941 (FC) 16] United Provinces v. Atiqa Begum 10 [(1979) 3 SCC 324] Union of India vs. Valluri Basavaiah Chaudhary Page 123 of 417 Downloaded on : Mon May 13 20:36:50 IST 2024 NEUTRAL CITATION C/SCA/2995/2021 CAV JUDGMENT DATED: 09/05/2024 undefined

63. In Jilubhai Nanbhai Khachar vs. State of Gujarat11 , it was noted that as per the settled law of interpretation, entries in the Seventh Schedule are not powers but fields of legislation. The legislature derives its power from Article 246 and other related Articles of the Constitution. Thus, the language of the respective entries should be given the widest scope of their meaning, fairly capable to meet the machinery of the Government settled by the Constitution. Each general word should extend to all ancillary or subsidiary matters which can fairly and reasonable be comprehended in it. When the vires of an enactment is impugned, there is an initial presumption of its constitutionality and if there is any difficulty in ascertaining the limits of the legislative power, the difficulty must be resolved, as far as possible in favour of the legislature putting the most liberal construction upon the legislative entry so that it may have the widest amplitude. It must be remembered that when the Court is called upon to interpret the Constitution, it must not be construed in any narrow or pedantic sense and adopt such construction which must be beneficial to the amplitude of 11 [1995 Supp. (1) SCC 596] Jilubhai Nanbhai Khachar vs. State of Gujarat Page 124 of 417 Downloaded on : Mon May 13 20:36:50 IST 2024 NEUTRAL CITATION C/SCA/2995/2021 CAV JUDGMENT DATED: 09/05/2024 undefined legislative powers. The broad and liberal spirit should inspire those whose duty is to interpret the Constitution to find whether the impugned Act is relatable to any entry in the relevant List.

Placing reliance on the decision of the Apex Court in India Cement Ltd. v. State of Tamil Nadu12 , it was noted in paragraph '8' therein as under :-

64. While dealing with the controversy therein pertaining to Entry 18 of List II (State List), it was noted with the aid of The Law Lexicon (Reprint edn. 1987) by Ramanatha Iyer (p. 701), that :-

65. It is in this background, we have to examine the present controversy as to whether the Land Grabbing Act' 2020 as a whole falls within the powers given to the State Legislature by Page 126 of 417 Downloaded on : Mon May 13 20:36:50 IST 2024 NEUTRAL CITATION C/SCA/2995/2021 CAV JUDGMENT DATED: 09/05/2024 undefined Entry No.18 in List II, inasmuch as, if the State draws power by this Entry read with Entries No. 64 and 65 which are with respect to any of the matters in the State List, there would be no necessity to draw power from any of the other Entries of the Constitution, such as Entry Nos. 1, 2, 6, 7, 11A, 12 and 13 of List II of the Seventh Schedule of the Constitution, as relied by the learned counsels for the petitioners. The question of repugnancy does not arise and need not be considered in such a situation. To deal with the above, we find it apt to first understand the main object and scope of the Land Grabbing Act' 2020 and the Legislative Scheme by applying the doctrine of Pith and Substance.

(b) Pith and Substance of The Gujarat Land Grabbing (Prohibition) Act, 2020 :-

66. It was argued by the learned Advocate General that the Pith and Substance of the Gujarat Act is "Land", which is referable to Entry Nos. 18, 64 and 65 of List II and hence while assuming without admitting that the Land Grabbing Act' 2020 trenches upon the subject of Entries No. 1, 2, 6, 7, 11A, 12 and 13 of List III, even in that eventuality, it would be merely an incidental trenching and would Page 127 of 417 Downloaded on : Mon May 13 20:36:50 IST 2024 NEUTRAL CITATION C/SCA/2995/2021 CAV JUDGMENT DATED: 09/05/2024 undefined have no bearing on the validity of the legislation, irrespective of the extent and degree of such trenching.

67. Understanding the doctrine of Pith and Substance, which is to be applied to determine whether the Land Grabbing Act' 2020 falls in the field of legislation with respect to matters in one List or other, the true nature and character of the Act by ascertaining the object and main purpose of the provisions of the Land Grabbing Act' 2020 has to be seen. In other words, the impugned statute is to be examined as a whole to ascertain its Pith and Substance or its true nature and character for the purpose of determining whether it is a legislation with respect to matters in one list or the other. The settled principle is that where subject overlapped, the question must be asked, what in Pith and Substance is the effect of the enactment. It is to be ascertained whether overlapping is such that the legislature enacting them have entered into a forbidden sphere. Incidental trenching may inevitably happen from time to time that the legislature though purporting to deal with the subject in one list, touches upon a subject in another list (Ref.: Prafulla Kumar Page 128 of 417 Downloaded on : Mon May 13 20:36:50 IST 2024 NEUTRAL CITATION C/SCA/2995/2021 CAV JUDGMENT DATED: 09/05/2024 undefined Mukherjee vs. Bank of Commerce Ltd.13 ).

68. It is to be seen as to whether the State legislature is competent to make the law with respect to the matters referred to in the relevant entries in List II. Once the State legislature is found competent to make the law with respect to the field in List II, there is no question of conflict, as the competence of the State cannot be questioned. However, the apparent conflict with the Central legislative power with respect to the matters provided in List I or the Parliamentary enactments on the subjects of entries in List III (Concurrent List), can be resolved in a given case by invoking the doctrine of Pith and Substance and incidental trenching.

69. The test for determining whether in Pith and Substance, a particular enactment falls within one List or another, as elucidated in Bank of Commerce Ltd. v. Amulya Krishna Basu 14, was considered by the Apex Court in the State of Bombay vs. Narottamdas Jethabhai15 , summarising the effect of Privy Council decisions, that "It seems quite possible" on the point "that a particular Act regarded from one aspect might 13 Prafulla Kumar Mukherjee vs. Bank of Commerce Ltd. [AIR 1947 PC 60] 14 Bank of Commerce Ltd. v. Amulya Krishna Basu [AIR 1944 FC 18] 15 State of Bombay v. Narottamdas Jethabhai [AIR 1951 SC 69] Page 129 of 417 Downloaded on : Mon May 13 20:36:50 IST 2024 NEUTRAL CITATION C/SCA/2995/2021 CAV JUDGMENT DATED: 09/05/2024 undefined be intra vires of a Provincial Legislature and yet regarded from another aspect might also be intra vires of the Dominion Parliament (Central legislation)", it was said that the subject matter of an Act may depend upon what is true aspect of the Act. The cases which illustrated this principle show, by 'aspect' it must be understood as the aspect or point of view of the legislator in legislating the object, purpose and scope of the legislation. The word is used subjectively of the legislator rather than objectively of the matter legislated upon.

While construing a Federal Constitution, it must be remembered that it is of essence of such a constitution that there should be distribution of the legislative powers of the federation between the Centre and the Provinces. It has been seen that even when the Constitution enumerates elaborately the topics which the Centre and States could legislate, some overlapping of the field of legislation is inevitable.

70. The decisions of the Canadian Courts was noted by Justice Venkatarama Ayyar (As he then was) in A. S. Krishna v. State of Madras16 , that 16 [AIR 1957 SC 297] A.S. Krishna vs. State of Madras Page 130 of 417 Downloaded on : Mon May 13 20:36:50 IST 2024 NEUTRAL CITATION C/SCA/2995/2021 CAV JUDGMENT DATED: 09/05/2024 undefined notwithstanding that the List in the British North America Act, 1867, which established a federal Constitution for Canada, enumerated in Sections 91 and 92, the topics on which the Dominion and the Provinces could respectively legislate, though the Lists were framed so as to be fairly full and comprehensive, yet it was found that the topics enumerated in the two Sections overlapped. It was in that situation, the Privy Council faced with the challenge on the constitutionality of the laws made by the Dominion and Provincial legislations, evolved the doctrine that for deciding whether an impugned legislation was intra vires, regard must be had to its pith and substance. That is to say, if a statute is found in substance to relate to a topic within the competence of the legislature, it should be held to be intra vires, even though it might incidentally trench on topics not within its legislative competence.(Ref.Para:8, A.S. Krishna16).

71. The above principles noted in Para:8, A.S. Krishna16 have also been applied in deciding the question as to the vires of statutes passed by the Indian Legislatures under the Government of India Act, 1935 in Subrahmanyan Page 131 of 417 Downloaded on : Mon May 13 20:36:50 IST 2024 NEUTRAL CITATION C/SCA/2995/2021 CAV JUDGMENT DATED: 09/05/2024 undefined Chettiar v. Muttuswami Goundan17. The question therein was as to whether the Madras Agriculturalists Relief Act IV of 1938, which was within the exclusive competence of the Provincial Legislature under Entries 20 and 21 in List II, was ultra vires, in so far as it related to Promissory Notes executed by agriculturists by reason of the fact that under Entry 28, List I, "cheques, bills of exchange, promissory notes and other like instruments" were matters falling within the exclusive jurisdiction of the Centre. In holding that the legislation was intra vires, Sir Maurice Gwyer (C.J.) stated the reasons in these terms:

(Noted in Para 9 A.S. Krishna16 )

72. There is a reference of the decision in Prafulla Kumar13 in para '10' of A.S. Krishna16, where the question was whether the Bengal Money Lenders Act, 1940 , which related to the amount recoverable by Money lender for principle and interest on his loans was valid insofar as it related to Promissory Notes. While quoting with approval the observations of Sir Maurice Gwyer (C.J.) in Subrahmanyan Chettiar17, Lord Porter observed therein (Prafulla Kumar Mukherjee13 ) that :-

(Ref. Para 10 A.S. Krishna16)

73. Dealing with the question of the extent of the invasion by the Provincial Legislation into Federal fields, Lord Porter further observed :-

(Ref. Para 10 A.S. Krishna16)

74. The decision of the Federal Court in Lakhi Narayan Das v. Province of Bihar 18 was noted in paragraph 11 of A.S. Krishna16, wherein the question related to the validity of Ordinance No.IV of 1949 promulgated by the Government of Bihar, was examined. The Ordinance was 18 (AIR 1950 FC 59) Lakhi Narayan Das v. Province of Bihar Page 134 of 417 Downloaded on : Mon May 13 20:36:50 IST 2024 NEUTRAL CITATION C/SCA/2995/2021 CAV JUDGMENT DATED: 09/05/2024 undefined attacked on the ground that it was void under Section 107 (1) of the Government of India Act, inasmuch as, it provided for preventive detention, imposition of collective fines, control of processions and public meetings and there were special provisions for the offences under the Act. The contention was that though the Sections of the Ordinance relating to maintenance of public order might be covered by Entry I in List II, the Sections constituting the offences and providing for search and trial fell within Items I and 2 of the Concurrent List, and they were void as being repugnant to the provisions of the Criminal Procedure Code . In rejecting this contention, Mukherjea, J. observed therein:-

(Ref. Para 9 A.S. Krishna16)

75. The position summed up therein (A.S. Krishna16), in paragraph '12' reads as under :-

76. Applying the above principles, it was held in A.S. Krishna16 that the Madras Prohibition Act, validity of which was subject matter of challenge therein, both in form and in substance, a law relating to intoxicating liquors. The presumptions in Section 4(2) which are to be raised in the trial of Page 136 of 417 Downloaded on : Mon May 13 20:36:50 IST 2024 NEUTRAL CITATION C/SCA/2995/2021 CAV JUDGMENT DATED: 09/05/2024 undefined offences under section 4(1) of the Act, as also the provisions relating to search, seizure and arrest in Sections 28 to 32 , are only with reference to offences committed or suspected to have been committed under the Act. They have no operations generally apart from the offences created by the Act. They are no presumptions which are to be raised in the trial of criminal cases, as are those enacted in the Evidence Act , having no application to offences which fall outside the Act. They were, thus, held to be wholly ancillary to the exercise of the legislative power in respect of Entry 31 of List II. It was concluded that the Madras Prohibition Act, in its entirety, is a law within the exclusive competence of the Provincial Legislation and the question of repugnancy under Section 107(1) does not arise.

77. Applying the test, in the instant case, we may note the long title of the Gujarat Land Grabbing (Prohibition) Act, 2020 , which shows that it is an enactment to prohibit land grabbing activities and connected matters in the State of Gujarat. Section 2(c) of the Land Grabbing Act' 2020, which defines "land", reads that :-

78. The "land grabber" and "land grabbing, are defined in Sections 2(d) and (e) as under :-

79. As noted hereinbefore, Sections 3 and 4 make land grabbing in any form as unlawful and Page 138 of 417 Downloaded on : Mon May 13 20:36:50 IST 2024 NEUTRAL CITATION C/SCA/2995/2021 CAV JUDGMENT DATED: 09/05/2024 undefined prohibited and declared any activity connected with or arising out of land grabbing, to be an offence, punishable under the Land Grabbing Act' 2020. Section 5 provides penalty and Sections 7 to 11 provide for the constitution of Special Courts, procedure and power of Special Courts to deal with the complaints of any act of land grabbing. Section 12 provides as to how investigation shall be carried out by the police officer on receipt of information about the commission of offence of land grabbing under the Land Grabbing Act' 2020. Section 12(a) provides the remedy of appeal to the High Court against the final judgment and order made by Special Court under the Land Grabbing Act' 2020. Sections 13 and 14 pertains to the protection to the officers of the Government acting under the provisions of the Land Grabbing Act' 2020 and any officer or employee of the Special Court, as has been granted to a public servant within the meaning of Section 21 of the Indian Penal Code against any suit, prosecution or legal proceedings, for the actions taken in good faith or intended to be made under the Act or Rules made thereunder.

80. Section 15 gives overriding effect to the provisions of the Land Grabbing Act' 2020, Page 139 of 417 Downloaded on : Mon May 13 20:36:50 IST 2024 NEUTRAL CITATION C/SCA/2995/2021 CAV JUDGMENT DATED: 09/05/2024 undefined over the existing laws or custom, usage or agreement, as also decree or order of the Court or any tribunal or authority, inconsistent with the provisions of the Act. Section 16 confers power on the State Government to make Rules to carry out the purposes of the Land Grabbing Act' 2020. Rule 17 prohibits alienation of land grabbed or any part thereof by way of sale, lease, gift, exchange, settlement, surrender, usufructuary mortgage or otherwise, or any partition effected or a trust created in respect of such land, which has taken place whether before or after the commencement of this Act and states that such transaction shall, except to the extent ordered by the Special Court be null and void. Section 18 is removal of difficulties provision, whereas Section 19 is the repeal and saving provision of the Gujarat Land Grabbing (Prohibition) Ordinance, 2020 (Guj Ord. 10 of 2020).

81. Applying the doctrine of pith and substance considering the whole of the Land Grabbing Act, 2020 it is more than evident that in substance, the impugned Act aimed at prohibiting "land grabbing activities" in the State of Gujarat.

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82. A conjoint reading of Sections 2(c), 2(d) and 2(e) of the Land Grabbing Act' 2020 indicates that every activity to occupy or attempt to occupy any land, over which, a "land grabber/s" have no ownership, title or physical possession without any lawful entitlement, with or without the use of force, threat, intimidation and deceit, would be "land grabbing". Section 2(e) , in its second part, also includes activities of land grabbing to occupy or attempt to occupy such lands, with a view to illegally taking possession of such land or creating illegal tenancies or lease or license, agreement or transfer or sale or by constructing unauthorised structures thereon for sale or hire or use or occupation of such unauthorised structures and provides that the term "grabbed land" shall be construed accordingly.

83. The "land grabber" is defined to include the persons who committed land grabbing or abettors, who provide financial aid to any person for taking illegal possession of lands or for construction of unauthorised structure thereon. It also includes persons who collect or attempt to collect from any occupier such lands, rent, compensation and other charges by Page 141 of 417 Downloaded on : Mon May 13 20:36:50 IST 2024 NEUTRAL CITATION C/SCA/2995/2021 CAV JUDGMENT DATED: 09/05/2024 undefined criminal intimidation. It also includes the "successors-in-interest" of the land grabber, within the meaning of "land grabber" as per section 2(d) .

84. As can be seen, paramount purpose and object of the Land Grabbing Act' 2020 pertaining to the activity related to "land" within the meaning of Section 2(c) of the Land Grabbing Act' 2020, would fall within the field of legislation under Entry 18 of List II of Seventh Schedule, with respect to which the State legislature is competent to enact the law. As noted hereinabove, with the aid of the observations of Lord Wright speaking for Federal Court in Megh Raj7 , the key Entry 18 of List II, is to be found in the opening word "land". 'Land' indeed is primarily a matter of State concern because of its special characteristics in view of local customs and traditions in regard to land holding, specific problems of State or a locals concerned, which require provincial consideration. The State Legislature, thus, is empowered to enact a law in relation to "land and matters connected thereto". In pith and substance, the dominant purpose of the Land Grabbing Act' 2020 being the prohibition of land grabbing activities Page 142 of 417 Downloaded on : Mon May 13 20:36:50 IST 2024 NEUTRAL CITATION C/SCA/2995/2021 CAV JUDGMENT DATED: 09/05/2024 undefined and/or related activities, in its true nature is an Act, essential subject of which is "land" falling in Entry 18, List II.

(c) Repugnancy and Presidential Assent

85. Now the next question would arise in view of the arguments of the learned counsels for the petitioners as to whether there is any repugnancy with the Central Legislations. As noted hereinabove, there is no dispute about the competence of the State Legislature in enacting the impugned law. Various sections of the Land Grabbing Act' 2020 have been read in piecemeal by the learned advocates for the petitioners to assert that these provisions encroached upon the territory of the fields occupied by Entries 1, 2, 6, 7, 11A, 12 and 13 of List III of Seventh Schedule, and being falling in the subject of Concurrent List, lack of Presidential assent would make the whole enactment null and void.

86. The argument of the learned counsels for the petitioners is that though the impugned legislation may be said to be relatable to Entry 18 of List II of the Seventh Schedule, yet there is repugnancy with the Central Legislations in view of various sections incorporated under the Land Grabbing Act' Page 143 of 417 Downloaded on : Mon May 13 20:36:50 IST 2024 NEUTRAL CITATION C/SCA/2995/2021 CAV JUDGMENT DATED: 09/05/2024 undefined 2020. As noted above, it was argued that the impugned law encroaches upon the provisions of Section 27 of the Limitation Act as it defies the Articles of the Limitation Act, providing period of instituting suit/appeal for the possession. The impugned law encroaches upon the provisions of Sections 5 and 6 of the Specific Relief Act, which recognises mere possessory title for bringing a suit for recovery of the possession. The provisions of grant of temporary and perpetuatory injunction as also mandatory injunction are nullified by Section 15 , which gives overriding effect to the provisions of the Land Grabbing Act' 2020 over the decree or order of a Court of law or any Tribunal or Authority. The procedure for trying the civil and criminal proceedings under the Land Grabbing Act' 2020 is different from the procedure prescribed in CPC and Cr.P.C for civil and criminal proceedings. Section 9(5) and Section 11 of the impugned Act prescribe different procedure than what has been prescribed in the Evidence Act . The impugned Land Grabbing Act' 2020 is repugnant to Section 2(2) and Section 11 , CPC; Section 6 and 145 Cr.P.C. and Section 53A and Section 58 of the Transfer of Property Act, as well.

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87. In view of the apparent conflict, the State law being repugnant to the Central Legislations, the Presidential assent under Article 254(2) of the Constitution of India was mandatory, and as such the impugned law found foul to Article 254 (2) of the Constitution, cannot be sustained.

88. Dealing with the above question, we must, at this stage, set out Articles 246 and 254 of the Constitution of India. Article 246 imposes limitations on the legislative power of the Parliament and the State Legislature and it reads that :-

89. On analysis of this Article, it was noted by the Apex Court in Hoecst Pharmaceuticals Ltd.

vs. State of Bihar19 that :-

1. Parliament has exclusive power to legislate with respect to any of the matters enumerated in List I notwithstanding anything contained in clause (2) and (3). The non-obstante clause in Art. 246(1) provides for predominance or supremacy of Union Legislature. This power is not encumbered by anything contained in cls. (2) and (3) for these causes them selves are expressly limited and made subject to the non-obstante clause in Art. 246(1). The combined effect of the different clauses contained in Art. 246 is no more and no less than this: that in respect of any matter falling within List I, Parliament has exclusive power of legislation.

2. The State Legislature has exclusive power to make laws for such State or any part thereof with respect to any of the matters enumerated in List II of the Seventh Schedule and it also has the power to make laws with respect to any matters enumerated in List III. The exclusive power of the State Legislature to . legislate with respect to any of the matters enumerated in List II has to be exercised subject to cl. (l) i.e. the 19 [(1983) 4 SCC 45] Hoecst Pharmaceuticals Ltd. vs. State of Bihar Page 146 of 417 Downloaded on : Mon May 13 20:36:50 IST 2024 NEUTRAL CITATION C/SCA/2995/2021 CAV JUDGMENT DATED: 09/05/2024 undefined exclusive power of Parliament to legislate with respect to matters enumerated in List I. As a consequence, if there is a conflict between an entry in List I and an entry in List II which is not capable of reconciliation, the power of Parliament to legislate with respect to a matter enumerated in List II must supersede pro tanto the exercise of power of the State Legislature.

3. Both Parliament and the State Legislature have concurrent powers of legislation with respect to any of the matters enumerated in List III.

90. Article 254 provides for method of resolving conflict between the law made by the Parliament and law made by the legislature of a State with respect to matters falling in the Concurrent List and it reads that:-

NEUTRAL CITATION C/SCA/2995/2021 CAV JUDGMENT DATED: 09/05/2024 undefined (2) Where a law made by the Legislature of a State with respect to one of the matters enumerated in the Concurrent List contains any provision repugnant to the provisions of an earlier law made by Parliament or an existing law with respect to that matter, then, the law so made by the Legislature of such State shall, if it has been reserved for the consideration of the President and has received his assent, prevail in that State:

91. The Parliament and the State Legislature have concurrent powers with respect to subjects enumerated in List III, provided the provisions of the State Act do not conflict with those of any Central Act on the subject, however, in case of repgunancy, as provided under clause (2) of Article 254 , the State law must yield to the Central law unless it has been reserved for the assent of the President and has received the assent. The effect is that the question of repugnancy arises only where both the legislatures are competent to legislate in the same field, i.e. when both the Union and the State laws relate to a subject specified in List III and occupy the same field unless there is an irreconcilable Page 148 of 417 Downloaded on : Mon May 13 20:36:50 IST 2024 NEUTRAL CITATION C/SCA/2995/2021 CAV JUDGMENT DATED: 09/05/2024 undefined conflict between the entries in the Union and the State List. The words "notwithstanding anything contained in clause (2) and (3)" in Article 246(1) and the words "Subject to clauses (1) and (2)" in Article 246(3) lays down the principle of federal supremacy viz. that in case of inevitable conflict between the Union and State powers as enumerated in List II and List III, in case of overlapping between List II and List III, the former shall prevail. In the case of seeming conflict between the two lists, the entries should be read together without giving a narrow or restricted sense to either of them. The attempt should be made to see whether the two Entries cannot be reconciled so as to avoid a conflict of jurisdiction. It should be considered whether a fair reconciliation can be achieved by giving to the language of the Union Legislative List a meaning (List I & List III) that can properly be given to it and equally giving to the language of the State Legislative List (List III) the meaning in the same way. The non-obstante clause in Article 246(1) must only operate if such reconciliation is impossible. However, no question of conflict between the two Lists will arise if the impugned legislature by the Page 149 of 417 Downloaded on : Mon May 13 20:36:50 IST 2024 NEUTRAL CITATION C/SCA/2995/2021 CAV JUDGMENT DATED: 09/05/2024 undefined application of the doctrine of "pith and substance" appears to fall exclusively under one list and the encroachment upon another list is only incidental. (Ref. Para 41, M/s. Hoecst Pharmaceuticals Ltd.19)

92. It was noted in the words of Gwyer, C.J. in C.P. and Berar Taxation Act case20:-

93. The observations noted hereinabove of Gwyer, C.J. and Lord Porter in Subrahmanyan Chettiar17 and Prafulla Kumar13 are noted in Hoecst Pharmaceuticals Ltd.19 to hold that apparent conflict with the federal power had to be resolved by application of the doctrine of Pith and Substance and the incidental encroachment, once it is found that a law made by the Provincial Legislature was with respect to one of the matters enumerated in the Provincial List, the degree or extent of invasion into the forbidden field was immaterial. The observation of the Privy Council in Prafulla Kumar13 was noted that the priority of the Federal Legislature would not 20 [AIR 1945 PC 98] C.P. and Berar Taxation Act case Page 150 of 417 Downloaded on : Mon May 13 20:36:50 IST 2024 NEUTRAL CITATION C/SCA/2995/2021 CAV JUDGMENT DATED: 09/05/2024 undefined prevent the Provincial Legislature from dealing with any matter within List II though it may incidentally affect any item in List I. The constitutionality of the law is to be judged by its real subject matter and not by its incidental effect on any topic of legislation in any field.

94. The Apex Court in Hoecst Pharmaceuticals Ltd.19 had also considered the doctrine of paramountcy and stated that the said doctrine is tied up with the "trenching doctrine". The Rule as to predominance of Dominion Act can be only invoked in cases of absolutely conflicting legislation in pari materia, when it would be an impossibility to give effect to both the Dominion and the Provincial enactment.

95. It was further noted therein that no issue of paramountcy can arise unless there is any existent federal and provincial legislation which, independently considered, is in each case valid. If either piece of legislation, stand alone, is invalid, there is no occasion to consider whether the field has been occupied. The issue that will have to be resolved in such a case two valid legislations would be anterior one of the "matter embraced Page 151 of 417 Downloaded on : Mon May 13 20:36:50 IST 2024 NEUTRAL CITATION C/SCA/2995/2021 CAV JUDGMENT DATED: 09/05/2024 undefined by the legislation, whether of Parliament or of the provincial legislature, as the case may be", i.e the doctrine of occupied field applies only where there is a clash between Dominion legislation and provincial legislation within an area common to both. Where Union and the State law operate in two different and distinct fields and both the laws are capable of being obeyed, there is no question of conflict. It is, thus, held in paragraphs '57' and '67' as under :-

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96. Referring to the decision in Deep Chand v.

State of Uttar Pradesh & Ors21, interpretation of Article 254(1) was noted in Hoecst Pharmaceuticals Ltd.19 in the following manner :-

97. In Innoventive Industries Ltd. Vs. ICICI Bank22 , the law pertaining to repugnancy in Article 254 of the Constitution has been summarised as follows:-

[AIR 1959 SC 648] Deep Chand v. State of Uttar Pradesh & Ors 22 [(2018) 1 SCC 407] Innoventive Industries Ltd. Vs. ICICI Bank Page 154 of 417 Downloaded on : Mon May 13 20:36:50 IST 2024 NEUTRAL CITATION C/SCA/2995/2021 CAV JUDGMENT DATED: 09/05/2024 undefined

(d) Incidental Trenching

98. The question of repugnancy under Article 254 (1) between a law made by Parliament and a law made by the State Legislature would arise only in case both the Legislations occupy the same field with respect to one of the matters enumerated in the Concurrent List, and there is direct conflict between the two laws. It is only when both these requirements are fulfilled that the State Law will, to the extent of repugnancy, become void. Article 254 (1) has no application to the cases of repugnancy due to overlapping found between the List II on the one hand and List I and List III on the other. If such overlapping exists in any particular case, the State law will be ultra vires because of the non- obstante clause under Article 246(1) read with the opening words "subject to" in Article 246(3). In such a case, the State law will fail not because of repugnancy to the Union law but due to want of legislative competence. But if Article 254(1) is read as a whole, it will be seen that it is expressly made subject to clause (2), which makes reference to repugnancy in the field of Concurrent List. In other words, if clause (2) is to be the guide in determination of scope of clause (1), Page 155 of 417 Downloaded on : Mon May 13 20:36:50 IST 2024 NEUTRAL CITATION C/SCA/2995/2021 CAV JUDGMENT DATED: 09/05/2024 undefined the repugnancy between Union and State law must be taken to refer only to the concurrent field. The underlying principle is that the question of repugnancy arises only when both the Legislatures are competent to legislate in the same field, i.e. with respect to one of the matters enumerated in the Concurrent List. Hence, Article 254(1) cannot apply unless both the Union and the State laws relate to a subject specified in List III and occupy the same field. (Ref. Hoechst Pharmaceuticals Ltd.19).

99. In Ch. Tika Ramji & ors v. State of Uttar Pradesh & Ors.23 , the Apex Court has observed that there is no question of repugnancy under Article 254 of the Constitution where parliamentary legislation and State legislation occupy different fields and deal with separate and distinct matters even though of a cognate and allied character and where there was no inconsistency in the actual terms of the Acts enacted by the Parliament and the State Legislature relatable to List III.

100. In Innoventive Industries Ltd.22, referring to the aforesaid principles in Tika Ramji23 and Deep Chand21, it was noted in paragraphs '42' 23 [AIR 1956 SC 676] Ch. Tika Ramji & ors v. State of Uttar Pradesh & Ors.

NEUTRAL CITATION C/SCA/2995/2021 CAV JUDGMENT DATED: 09/05/2024 undefined and '43' as under :-

Commonwealth, [1937] 58 CLR 618; Wenn v. Attorney-General (Vict.), [1948] 77 CLR

28. Isaacs, J. in Clyde Engineering Company, Limited v. Cowburn [(1926) 37 CLR 466, 489] laid down one test of inconsistency as conclusive:

29. Dixon, J. elaborated this theme in Ex parte McLean [(1930) 43 CLR 472, 483]:

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30. To the same effect are the observations of Evatt, J. in Stock Motor Plough Ltd. v. Forsyth [(1932) 48 CLR 128, 147]:

31. The Calcutta High Court in G.P. Stewart v. B.K. Roy Chaudhury [AIR 1939 Cal 628] had occasion to consider the meaning of repugnancy and B.N. Rau, J. who delivered the judgment of the Court observed at p. 632:

The learned Judge then discussed the various authorities which laid down the test of repugnancy in Australia, Canada, and England and concluded at p. 634:

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32. Sulaiman, J. in Shyamakant Lal v. Rambhajan Singh [(1939) FCR 188, 212] thus laid down the principle of construction in regard to repugnancy (SCC OnLine FC):

43. In Deep Chand v. State of U.P. , 1959 Supp. (2) SCR 8, this Court referred to its earlier judgments in Zaverbhai (supra) and Tika Ramji (supra) and held:

101. Keeping in mind all the above principles, we may reiterate that the impugned enactment pertains to the field viz. "land", that is to say "rights in or over land", which is within the exclusive field relatable to Entry 18 of List II (State List). The Parliament, neither in List I (Union List), nor in List III (Concurrent List), has been given power to Page 162 of 417 Downloaded on : Mon May 13 20:36:50 IST 2024 NEUTRAL CITATION C/SCA/2995/2021 CAV JUDGMENT DATED: 09/05/2024 undefined enact a legislation, which deals with a "land or subject relatable to activities pertaining to land" in a particular Province or State. As to Entry 18 "land", the governing word is followed by rest of the items, viz. "rights in lands, rights over land", relatable to ownership or leasehold rights or easement or other collateral rights etc. Reading Entry 18 with Entry 64 further shows that the State is empowered to enact any law, making any activity against laws with respect to any of the matters in the State List (List II) on offence against such laws. "Land grabbing", an activity wherein any person occupies or attempts to occupy any land over which he has no ownership, title or physical possession without any lawful entitlement, has been made an offence against law, which prohibits land grabbing. The making of land grabbing an offence against the law of holding land in the State by lawful means, would relate to Entry 64 as it has been made an offence with respect to the matter, viz. "land" in Entry 18 of the List II, which is again within the exclusive domain of the State Legislature.

102. Coming to Entry 65, it enables the State Legislature to confer jurisdiction and power of the Court, within its territorial Page 163 of 417 Downloaded on : Mon May 13 20:36:50 IST 2024 NEUTRAL CITATION C/SCA/2995/2021 CAV JUDGMENT DATED: 09/05/2024 undefined jurisdiction, with respect to any of the matters in the List II (State List). Thus, conferment of jurisdiction and power of the Special Courts, for any area or areas within the territorial jurisdiction of the State under Section 7 of the Land Grabbing Act' 2020, would fall in Entry 65, as such conferment of jurisdiction and power on the Court will be with respect to the matter in the State List which is "land", i.e. to say "rights in or over land". The result is that the impugned enactment made by the State Legislature falls squarely in the fields occupied by List II, inasmuch as, making land grabbing an offence and conferment of jurisdiction and power to the Special Courts to try every case arising out of any alleged act of land grabbing would be relatable to the subject "land", i.e. to say "right in or over land", relatable to Entry 18 and thus, would fall in the fields occupied by Entries 64 and 65 of List II (State List).

103. As noted by the Apex Court in Hoechst Pharmaceuticals Ltd.19, it would be axiomatic that the power of the State Legislature to make a law with respect to Entry in List II of the Seventh Schedule and make ancillary provisions in that behalf is plenary and is Page 164 of 417 Downloaded on : Mon May 13 20:36:50 IST 2024 NEUTRAL CITATION C/SCA/2995/2021 CAV JUDGMENT DATED: 09/05/2024 undefined not subject to the power of the Parliament to make a law under Entry of List III. When one entry is made "subject to" another entry, all that it means is that out of the scope of the former entry, a field of legislation covered by the latter has been reserved to be specifically dealt with the appropriate Legislature. Entries 18, 64 and 65 have not been made subject to any of the entries in List III, Entries 1 to 6, 7, 11A, 12, 13, 46 of List III, as sought to be agitated before us.

104. As noted above, taking clue from the observations of the Apex Court in Tika Ram23, it may be held that there is no question of repugnancy in Article 254 of the Constitution, inasmuch as, the State Legislature is competent to legislate in the field pertaining to "lands", i.e. to say "right in or over land", a separate and distinct matter relatable to its State subject in Entry 18 and the matters cognate and of allied character in Entries 64 and 65 of the same List, i.e. List II.

105. As noted above, applying the doctrine of pith and substance, considering the whole of the Land Grabbing Act' 2020 in substance, the Page 165 of 417 Downloaded on : Mon May 13 20:36:50 IST 2024 NEUTRAL CITATION C/SCA/2995/2021 CAV JUDGMENT DATED: 09/05/2024 undefined impugned Act is aimed at prohibiting land grabbing activities in relation to the lands in the State of Gujarat, and as such, there is no inconsistency in actual terms, insofar as the fields occupied by Entries 1, 2, 6, 7, 11A, 12, 13, 46 of List III.

106. Applying the well-established rule of construction that the entries in the three lists must be read in a broad and liberal sense and must be given the widest scope which their meaning is fairly capable of because they set up a machinery of Government, we find that the Constitution has made the power of the State to provide for offence against laws and jurisdiction and powers of the Court with respect to any of the matters in the State List (List II) and that of the Union in Entries 1, 11A and 46 of List III, mutually exclusive, so as to avoid difficulties which may arise from overlapping powers of such fields. It is evident that there is a distinction between general subjects of legislation in Entries 1, 2, 6, 7, 11A, 12, 13 and 46 in List III and specific State subject "land" in List II. The general subjects of legislation dealt in the aforesaid entries and the power to legislate with respect to the matters relatable to Entry 18, i.e. to say Page 166 of 417 Downloaded on : Mon May 13 20:36:50 IST 2024 NEUTRAL CITATION C/SCA/2995/2021 CAV JUDGMENT DATED: 09/05/2024 undefined "right in or over land" are under a separate group. This mutual exclusiveness is further substantiated by the fact that in List III (Concurrent List), there is no entry relating the "land", i.e. to say, "right in or over land". Thus, in our Constitution, a conflict of legislative power of the Union and of the State on the exclusive State subject of "land", i.e. to say "rights in or over land"

107. Coming to the next contention of the learned counsel for the petitioners about the apparent collision with the Central laws, viz. Civil Procedure Code, Criminal Procedure Code, Limitation Act, Specific Relief Act and Transfer of Property Act, we may deal with Page 167 of 417 Downloaded on : Mon May 13 20:36:50 IST 2024 NEUTRAL CITATION C/SCA/2995/2021 CAV JUDGMENT DATED: 09/05/2024 undefined each of the provisions hereinunder :-

108. It has been contended that the impugned Act provides a different procedure than what has been prescribed in the Civil Procedure Code and Criminal Procedure Code . Section 2 and Section 9(3) give overriding effect to the provisions of the Land Grabbing Act' 2020 to the Parliamentary Legislation occupying the field, providing procedure pertaining to civil and criminal proceeding; respectively.

109. To deal with the same, we may note that Section 4(1) of the Code of Civil Procedure is in the nature of Saving clause as it provides that the provisions of the Code shall be deemed to limit or otherwise affect any special or local law now in force or any special jurisdiction or power conferred, or any special form of procedure prescribed, by or under any other law for the time being in force. Moreover, we may go through Section 9(2) of the Land Grabbing Act' 2020, to understand the import and purport of the said provision, which reads as under:-

110. Careful reading of Section 9(2) of the Land Grabbing Act' 2020 indicates that it confers exclusive jurisdiction upon the Special Courts constituted under Section 7 of the Land Grabbing Act' 2020 to try and determine the questions of title and ownership to, or lawful possession of any land, which is alleged to have been grabbed falling within the meaning of section 2(e) of the said Act.

111. The argument of the learned counsel for the petitioners is that the non-obstante clause in sub-section (2) of Section 9 excludes all procedure pertaining to trial of civil suit prescribed under the Code of Civil Procedure and significantly omits the procedure of trial for determination on questions of title, ownership or possession of immovable property, which is in direct conflict with the Central law, namely the Code of Civil Procedure enacted to provide comprehensive procedure for trial of all suits of civil nature.

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112. To answer this submission, suffice it to say that the reading of non-obstante clause contained in sub-section (2) of Section 9 of the Land Grabbing Act' 2020 shows that it confers exclusive jurisdiction upon the Special Courts constituted under the Land Grabbing Act' 2020, which excludes expressly the jurisdiction of regular civil courts to try all Civil Suits of civil nature. Section 9 of the Code of Civil Procedure prescribes for exclusion of the jurisdiction of the courts, defined as District Courts therein, to try all suits of civil nature, except those of which cognizance is either expressly or impliedly barred.

113. A conjoint reading of Section 9(2) of the Land Grabbing Act' 2020 and Section 9 of the Code of Civil Procedure, makes it clear that the Legislature intended to confer jurisdiction on the Special Courts constituted under the Land Grabbing Act' 2020 to try all disputes of civil nature pertaining to the alleged act of land grabbing, which may include the question of title, ownership or possession thereof. This can further be clarified from the meaning of the act of "land grabbing" given in section 2(3) , which defines "land grabbing" being an activity of occupying or attempting to occupy Page 170 of 417 Downloaded on : Mon May 13 20:36:50 IST 2024 NEUTRAL CITATION C/SCA/2995/2021 CAV JUDGMENT DATED: 09/05/2024 undefined any land over which a person against whom the allegations are made as having no ownership, title or physical possession without any lawful entitlement.

114. Proceeding further, we are required to note the provisions of Section 10 of the Land Grabbing Act' 2020, which provides for applicability of the provisions of the Code of Civil Procedure to the proceedings before the Special Court, insofar as they are not inconsistent with the provisions of the Land Grabbing Act' 2020 and further states that for the purpose of provisions of the said enactment, viz. the Code of Civil Procedure , Special Court shall be deemed to be a Civil Court.

115. The contention of the learned counsel for the petitioner that non-obstante clause under sub- section (2) of Section 9 whittle down the procedure prescribed in Code of Civil Procedure is, thus, liable to turned down being a result of misreading/misinterpretation of the said provision. It is settled that a non-obstante clause cannot whittle the wide import of the principal part where the enacting part is clear; the non-obstante clause cannot cut down its scope. In the same Page 171 of 417 Downloaded on : Mon May 13 20:36:50 IST 2024 NEUTRAL CITATION C/SCA/2995/2021 CAV JUDGMENT DATED: 09/05/2024 undefined manner, sub-section (3) of Section 9 which provides procedure in the matter of determination of civil liability to be consistent with the principles of natural justice and fair play, and makes the provisions of Code of Civil Procedure subject to the provisions of the impugned Act and of Rules made thereunder, cannot be said to cut down the scope of applicability of the provisions of Code of Civil Procedure as provided in Section 10 of the Act' 2020.

116. We may further note that sub-section (3) of Section 9 of the impugned Act pertains to the procedure for determination of civil liability which is to be imposed as per Section 4(3) of the impugned Act, on a person who is found to be guilty of committing or cause to be committed the Act of "land grabbing" by him or through any other person. A careful reading of Section 4(3) indicates that the Land Grabbing Act' 2020 imposes both civil and criminal liability on the person found guilty of commission of the act of land grabbing. The criminal liability, upon conviction, is imprisonment for a term of not less than 10 years, whereas the civil liability is of fine, which may extend to Jantri value of the property in question (grabbed land). As per Page 172 of 417 Downloaded on : Mon May 13 20:36:50 IST 2024 NEUTRAL CITATION C/SCA/2995/2021 CAV JUDGMENT DATED: 09/05/2024 undefined the said provision, both civil and criminal liability can be imposed simultaneously and separately. In view of this provision, when Section 9(3) is read carefully, it can be understood to have been providing the procedure for deciding the 'civil liability', by computation of fine, to be imposed upon land grabber as per Section 4(3) of the Land Grabbing Act' 2020, by complying with the principles of natural justice and fair play, subject to the provisions of the Act and the Rules made thereunder.

117. Further, the contention that under Section 15 of the impugned Act, even a decree or order of the court of law has been nullified, which runs contrary to the decree defined under Section 2(2) and Section 11 of the Code of Civil Procedure, as overriding effect has been given to the provisions of the Land Grabbing Act' 2020 over an enforceable order or decree of the Civil Court, this issue may be dealt by us a little later in this part (Part I) of the judgment itself.

118. Now coming to the provisions of the Criminal Procedure Code , 1973 related to the mechanism of initiating criminal proceedings, investigation, trial before the Criminal Page 173 of 417 Downloaded on : Mon May 13 20:36:50 IST 2024 NEUTRAL CITATION C/SCA/2995/2021 CAV JUDGMENT DATED: 09/05/2024 undefined Courts and the provisions of appeal and revision, etc., we may read Sections 4 and 5 of the Criminal Procedure Code and reproduce them as under :-

119. Sub-section (1) of Section 4 deals with offences under the Indian Penal Code and Sub- section (2) deals with the exclusion, "but subject to any enactment for the time being in force regulating the manner of place of investigating, inquiring into, trying or otherwise dealing with such offences".

NEUTRAL CITATION C/SCA/2995/2021 CAV JUDGMENT DATED: 09/05/2024 undefined Reading of Section 5 of the Criminal Procedure Code shows that it would be applicable to investigation, inquiring into and trial of cases by criminal courts of various descriptions, being penal statute, in absence of any contrary provisions in the special statute or special provisions, provided for special jurisdiction or the power conferred, or prescribing any special form or procedure.

120. In State (Union of India) vs. Ram Saran24 , while dealing with the question of conviction made by the Assistant Commandant of Central Reserve Police Force under Section 10(m) of the Central Reserve Police Force Act, 1949 and consequential sentence imposed, it was held by the Apex Court that "a special law means a law enacted for special cases, in special circumstances, as distinguished from the general rules of law laid down as being applicable to all cases dealt with by the general law". It was held that the CRPF Act being a special law providing special procedure for the manner or place of investigation or inquiring into the offences under which the provisions thereof must be waived and no provisions of Code of Criminal Procedure can apply. It was, thus, held that 24 [(2003) 12 SCC 578] State (Union of India) vs. Ram Saran Page 175 of 417 Downloaded on : Mon May 13 20:36:50 IST 2024 NEUTRAL CITATION C/SCA/2995/2021 CAV JUDGMENT DATED: 09/05/2024 undefined the Assistant Commandant, CRPF was clothed with necessary jurisdiction for trial of the matter.

121. However, reverting to the provisions in Section 9(4) and Section 10 of the impugned Land Grabbing Act' 2020, we may note that Sub- section (4) of Section 9 confers jurisdiction on the Special Courts to try all offences punishable under the Act, punishment of which has been provided in Section 4(3) . Section 10 further clarifies that the provisions of the Code of Criminal Procedure shall apply to the proceedings of the Special Court, insofar as they are not inconsistent with the provisions of this Act and the Special Court shall be deemed to be the Court of Sessions and shall have all the powers of the Sessions as also the person conducting the prosecution before the Special Court shall be deemed to be an Assistant Public Prosecutor.

122. Meaning thereby, the provisions of the Code of Civil Procedure and the Code of Criminal Procedure have been applied to the proceedings of civil and criminal trial into the complaints of the land grabbing and the procedure of Civil Procedure Code and Criminal Procedure Code are to be followed save as Page 176 of 417 Downloaded on : Mon May 13 20:36:50 IST 2024 NEUTRAL CITATION C/SCA/2995/2021 CAV JUDGMENT DATED: 09/05/2024 undefined inconsistency with the special statute.

123. It is also pertinent to note, at this juncture, that the District Courts in the local limits of the ordinary civil jurisdiction and the Court of Sessions for every Sessions Division have been designated as the Special Courts for trying both disputes of Civil and Criminal nature on the complaints of land grabbing by Notification dated 06.11.2020 published under Section 7 of the Land Grabbing Act' 2020 by the State Government. Conferment of power to try the dispute of civil and criminal nature to the regular Civil Court and the Court of Sessions at the level of "District Judge" by designating them as the "Special Courts", is in conformity with the provisions of both the Codes of Civil and Criminal Procedure enacted by the Parliament.

124. In view of the above discussion, the contention of learned counsels for the petitioners about the inconsistency in the provisions of Section 9(4) of the Land Grabbing Act' 2020 with the provisions of the Code of Criminal Procedure , is liable to be turned down.

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125. Further submission of the learned senior counsel and other advocates appearing for the petitioners is that in the Criminal Procedure Code , Section 6 provides for hierarchy of Courts mentioned as Classes of criminal courts. Apart from the Court of Sessions, there are Courts of Judicial Magistrates of First and Second Class to whom power has been specifically conferred to take cognizance of any offence under Section 190 contained in Chapter XIV of the Criminal Procedure Code . Section 193 contained in the same Chapter excludes the jurisdiction of the Court of Sessions to take cognizance of any offence, of a Court of original jurisdiction, unless the case has been committed to it by a Magistrate under the Code. Similarly, in a case where the report has been submitted by the Police Officer on completion of investigation under Section 173 , Cr.P.C., cognizance can be taken by the Judicial Magistrate under Section 190(1)(b). Section 173(8) empowers the Magistrate to direct for further investigation on a report submitted under Section 173(2) of the Code. The contention, thus, is that in view of the provisions contained in Chapter XIV of Code of Criminal Procedure , the conferment of power on the Special Court (as a Page 178 of 417 Downloaded on : Mon May 13 20:36:50 IST 2024 NEUTRAL CITATION C/SCA/2995/2021 CAV JUDGMENT DATED: 09/05/2024 undefined Court of Sessions) to take cognizance suo motu or on an application of any person, is inconsistent with the aforesaid provisions.

126. This submission does not detain us for long as from the reading of Section 193 , Cr.P.C. which makes it clear that exceptions to the provisions contained in Section 193, if any, by any other law for the time being in force, are saved. The 'Land Grabbing Act' 2020' being a Special law, powers conferred on the Special Courts (A Court of Sessions as per Section 10 of the Land Grabbing Act' 2020) cannot be said to confront the provisions of the Cr.P.C in any manner.

127. Lastly, on the submission with regard to the provisions of Section 145(5) Cr.P.C. relating to disputes as to immovable property, suffice it to note that the provisions contained therein speak for the power of the Executive Magistrate appointed by the State Government as provided in Section 20 , Cr.P.C. Any order passed by an Executive defined under Section 20 Cr.P.C. cannot be said to be binding on the Judicial Magistrate or the Court of Sessions. Moreover, it is settled law that the proceedings under Section 145 Cr.P.C. are summary in nature and the order passed therein Page 179 of 417 Downloaded on : Mon May 13 20:36:50 IST 2024 NEUTRAL CITATION C/SCA/2995/2021 CAV JUDGMENT DATED: 09/05/2024 undefined would have no bearing on any substantive proceedings before any Court of law.

128. We may also take note of Section 5 of the Indian Penal Code which prescribes that nothing in the Indian Penal Code shall affect the provisions of any special or local law. No inconsistency, therefore, can be perceived from any of the provisions of the Civil or Criminal Procedure Code or Indian Penal Code , providing for offence against laws.

(ii) - Effect Of Section 15

129. Coming to the arguments of the learned counsels for the petitioners based on the overriding effect given to the provisions of the Land Grabbing Act' 2020 under Section 15 of the Act, we may extract the same for ready reference:-

130. From a conjoint reading of Section 15 and Section 2(e) of the Land Grabbing Act' 2020, we may note that the relevant words in Section 15 "any decree or order of a Court (Civil Page 180 of 417 Downloaded on : Mon May 13 20:36:50 IST 2024 NEUTRAL CITATION C/SCA/2995/2021 CAV JUDGMENT DATED: 09/05/2024 undefined Court)", the subject matter of consideration herein, "inconsistent with the provisions of the Act" must yield to the provisions of the Land Grabbing Act' 2020. Meaning thereby, any such order or decree in favour of the land grabber, in relation to the grabbed land "without any lawful entitlement" would be inconsistent with the provisions of the Land Grabbing Act' 2020. The key words in Section 2(e) "without any lawful entitlement" will have to be given effective meaning so as to understand the effect and import of Section 15 of the Land Grabbing Act' 2020. The Statute provides that whosoever occupies or attempts to occupy, any land, to which he is not in ownership, title or physical possession, "without any lawful entitlement" commits the act of "land grabbing" within the meaning of the Land Grabbing Act' 2020, such person would be defined as "land grabber" in relation to the subject land, which will have to be construed as "grabbed land". The words "grabbed land" draw their meaning under Section 2(e) itself.

131. Under the impugned statute which came into force on 29.08.2020, "land grabbing" has been made an offence punishable under the Act, Page 181 of 417 Downloaded on : Mon May 13 20:36:50 IST 2024 NEUTRAL CITATION C/SCA/2995/2021 CAV JUDGMENT DATED: 09/05/2024 undefined cognizance of which is to be taken by the Special Court like a complaint case, to try for the criminal offence under Section 3 of the Act. An information may also be given to the competent police authority of commission of offence under the Act, which then would have to be investigated by the police officer after recording the information only after prior approval of the District Collector which would have to be given in consultation with the Committee notified by the State Government. Under the Scheme of the Rules framed under the Act, the competent committee defined in Section 2(a) notified by the State Government would make a prima facie inquiry into the veracity of the complaint, the allegations of land grabbing before any report of commission of offence is lodged in the concerned police station. Section 9 (2) of the Land Grabbing Act' 2020, as noted hereinabove, excludes the jurisdiction of the regular civil court other than Special Court designated by the State Government to try the cases in respect of alleged act of land grabbing.

132. Reading Section 15 in the above context, would indicate that with effect from the date of enactment i.e., 29.08.2020, the ordinary Civil Page 182 of 417 Downloaded on : Mon May 13 20:36:50 IST 2024 NEUTRAL CITATION C/SCA/2995/2021 CAV JUDGMENT DATED: 09/05/2024 undefined Courts are not competent to try the cases having allegations of land grabbing. The Special Court as a Court of Sessions would be competent to take cognizance of the complaint of land grabbing, either suo motu or on an application made by any person. The intention of the legislature, as can be found from the reading of Section 15 along with Section 9(2) of the Land Grabbing Act' 2020, is that even if a Decree or Order has been passed in favour of a person against whom allegations of land grabbing are made, the same would not be a bar to the Special Courts to take cognizance or try the case specifically to examine the correctness of the allegations of land grabbing. In other words, a person against whom allegations of land grabbing are made, would not be able to protect his possession, simply based of any order or decree of the Civil Court, without any lawful entitlement, to the land in question. The effect of the order or decree of any court, tribunal, or authority in favor of such a person, in protecting his possession, shall have to be examined by the Special Court to draw a conclusion, whether such order or decree would be binding on the complainant and protects the possession of the alleged land grabber to the Page 183 of 417 Downloaded on : Mon May 13 20:36:50 IST 2024 NEUTRAL CITATION C/SCA/2995/2021 CAV JUDGMENT DATED: 09/05/2024 undefined land, which is otherwise alleged to have been obtained by illegal means, without any backing of law.

133. We may further record the submissions of the learned Advocate General that overriding effect to the decree or order of a Court, tribunal, or authority in no manner can tinker with a binding decree or order of the competent court of civil jurisdiction inter-se parties. The provisions under Section 15 does not and cannot unsettle the settled position of law based on the order or decree passed by the competent court inter se parties "about lawful entitlement" of the person against whom the complaint has been made, to retain his possession. The order or decree of the competent court is to be respected and followed by the Special Courts once the parties cite and draw attention of the court to the same. It was further submitted that the provisions of Section 15 are to be applied, prospectively. It would not be having an effect of nullifying any existing decree of the competent Civil Court passed prior to the enactment i.e., before 29.08.2020.

134. However, any order or decree passed by the ordinary Civil Court on or after 29.08.2020, Page 184 of 417 Downloaded on : Mon May 13 20:36:50 IST 2024 NEUTRAL CITATION C/SCA/2995/2021 CAV JUDGMENT DATED: 09/05/2024 undefined jurisdiction of which has been ousted by virtue of Section 9(2) would be inconsistent with the impugned Act. In other words, only such order or decree of the Court which is not competent to try the matter will not be a protection to the person in whose favour such a decree or order is passed, being in consistent with the provisions of the Land Grabbing Act' 2020 and would not have to be respected after enforcement of the Act.

It was submitted that a person against whom a complaint of land grabbing is made, will not be able to seek protection of the Civil Court order obtained after the enactment, i.e. 29.08.2020, and has to establish his better claims, i.e. right, title, or interest in the property and his lawful entitlement to retain possession or ownership. The Special Court, in such cases, is empowered to deal with the complaints independently without being guided by the order of the Civil Court, which otherwise did not have jurisdiction to adjudicate the matter.

135. Applying Section 15 in this manner prospectively, we find that a careful reading of Section 15 clearly indicates that the Page 185 of 417 Downloaded on : Mon May 13 20:36:50 IST 2024 NEUTRAL CITATION C/SCA/2995/2021 CAV JUDGMENT DATED: 09/05/2024 undefined Legislature has taken a precaution in giving overriding effect to the provisions of the Land Grabbing Act' 2020 against a decree or order of a court or tribunal or authority inconsistent with its provision, when the overriding effect given against the law is "for the time being in force", whereas no such phrase has been added after the words "decree or order of a court or any tribunal or authority". Giving a purposive interpretation to the provisions of Section 15 , reading the said provision along with other provisions of the Act, in effect, we find that Section 15 cannot be interpreted to mean that it can nullify or override an existing decree of a competent court, unless it is inconsistent with the law which provides that a person who has grabbed the land by deceitful means and who has no ownership, title or physical possession, and has occupied or attempted to occupy the land, without any lawful entitlement, would be termed a land grabber. There will be no estoppel or res judicata for the Special Court to examine a complaint of land grabbing even in the case of a decree or order in favour of a person who is termed as "land grabber" and who is claiming right or possession in or of any "grabbed land" under Page 186 of 417 Downloaded on : Mon May 13 20:36:50 IST 2024 NEUTRAL CITATION C/SCA/2995/2021 CAV JUDGMENT DATED: 09/05/2024 undefined the Act.

136. This opinion drawn by us is further substantiated from the general provisions of Section 6 of the Specific Relief Act. Section 6(1) and (2) protects the possession of a person who has been dispossessed, without his consent, of immovable property otherwise than in due course of law, by permitting him to institute a suit to recover possession within a period of six months from the date of such dispossession, notwithstanding any other title that may be set up in such suit. In such a suit under Section 6 of the Specific Relief Act, simply for recovery of possession, only question that has to be determined by the Court is whether the plaintiff was in the possession of the disputed property and whether he had been illegally dispossessed therefrom on any date within six months prior to the filing of the Suit.

137. The purpose behind Section 6 of the Specific Relief Act is to restrain a person from using force to dispossess a person, otherwise than in due course of law. Due course of law implies the right of a person affected thereby to have determination of the controversy by proof of every material fact which bears on Page 187 of 417 Downloaded on : Mon May 13 20:36:50 IST 2024 NEUTRAL CITATION C/SCA/2995/2021 CAV JUDGMENT DATED: 09/05/2024 undefined the question of fact or liability, to be conclusively proved or presumed against him. Sub-section (4) of Section 6 , thus, implies that there shall be no bar against any person to bring a suit to establish his title to such property so as to recover its possession.

138. On the aforesaid principle, once the provisions of Section 15 are tested, they imply that a trespasser, even if he has obtained a decree in his favour to protect his possession of immovable property, any other person claiming a title of the property has a right to bring his own action, suit to recover possession, by establishing his title, by proof of the material facts having bearing on the question of fact or liability, to have a conclusive proof or presumption against the possessor.

139. The effect is that the cases wherein the right, title and interest inter-se parties are settled and crystallised, they cannot be reopened by the Special Court on the mere ground of being inconsistent with the provisions of the Land Grabbing Act' 2020 and there would be no overriding effect against such orders or decrees of the Civil Courts. However, the claims which are not settled Page 188 of 417 Downloaded on : Mon May 13 20:36:50 IST 2024 NEUTRAL CITATION C/SCA/2995/2021 CAV JUDGMENT DATED: 09/05/2024 undefined conclusively or are pending in the regular court, there would be no estoppel or res- judicata for the Special Courts to entertain and examine the allegations of land grabbing in relation to the subject property. Section 15 , thus, can effectively be used in collateral proceedings without tinkering with the effect and import of the order or decree of a Court. A trespasser having obtained an interim injunction from an ordinary Civil Court will not be able to dispute the jurisdiction of the Special Court to try the case having allegations of land grabbing.

140. In any case, a statutory direction or prohibition cannot be defeated by the previous judgments between the parties. A person found guilty of commission of the offence of land grabbing, after a full-fledged trial into the complaint, will not be able to seek protection of law based on some decree or order wherein these aspects have not been gone into.[Ref. P.G. Eshwarappa vs. R. Rudrappa & Ors.25 ]

141. It is a settled position in law that the legislature cannot by a mere declaration, without anything more, directly overrule, reverse or override a judicial decision.

[( 1996) 6 SCC 96] P.G. Eshwarappa vs. R. Rudrappa & Ors .

NEUTRAL CITATION C/SCA/2995/2021 CAV JUDGMENT DATED: 09/05/2024 undefined However, it may, at any time, in exercise of the plenary powers conferred on it by the Constitution render a judicial decision ineffective by enacting a valid law on a topic within its legislative field, fundamentally altering or changing with retrospective, curative or neutralising effect the condition on which the decision is based [Ref:- I.N. Saksena vs. State of M.P.26 ; State Bank's Staff Union Madras27]

142. In the crux, giving a purposive meaning to the provisions of Section 15 , a harmonious reading of the same with the other provisions of the Act' 2020, makes it clear that section 15 does not and cannot unsettle the order or decree passed by the competent court having jurisdiction over the subject land, inter se parties, which crystallised the rights of the parties, and they shall have to be respected and followed by the Special Courts, once attention of it has been drawn to the same. However, such interpretation cannot be applied generally or uniformly and shall have to be examined in the facts and circumstances of the particular case. Moreover, the designated Special Courts being the regular Civil Courts/ 26 [(1976) 4 SCC 750] I.N. Saksena vs. State of M.P. 27 [2005 (7) SCC 584] State Bank'S Staff Union Madras vs Union Of India Page 190 of 417 Downloaded on : Mon May 13 20:36:50 IST 2024 NEUTRAL CITATION C/SCA/2995/2021 CAV JUDGMENT DATED: 09/05/2024 undefined Sessions Courts are well-versed with the nuances of law (both civil and criminal) and are expected to apply the well established principles of law in examining a particular case or deal with such a situation before it. All other questions, hypothetically raised before us, therefore, shall have to be left to the wisdom of the Special Court.

143. We may note that in the instant bunch of petitions, however, no such instance has been brought before us. None of the counsels for the petitioners urged that any of the petitioners have been got any decree or order in his/or favour, which crystallised their right, title and interest in the subject property or their better right to retain possession, obtained by lawful means.

144. We may draw support from the decision of the Apex Court in State Bank's Staff Union Madras27 wherein the Apex Court has examined the legislative intent of Section 8(1) of the Amended Act, 2015 of Arbitration and Conciliation Act, 1996 which contains the words "notwithstanding any judgment, decree or order of the Supreme Court or any Court". The question was as to whether by insertion of these words, the Legislature intended to do Page 191 of 417 Downloaded on : Mon May 13 20:36:50 IST 2024 NEUTRAL CITATION C/SCA/2995/2021 CAV JUDGMENT DATED: 09/05/2024 undefined away with the decision of the judgments of the Supreme Court laying down that the Consumer Protection Act being special remedy can be initiated and continued despite there being any arbitration agreement between the parties. To answer the said question, the Apex Court had examined the 2015 Amendments in the Arbitration Act incorporating Sub-section (6A) and 11 and the real intent and consequence in relation to the proceedings under the Consumer Protection Act , in reference to the Arbitration Agreement under the 1996 Act.

145. It was held that the words "notwithstanding any judgment, decree or order of the Supreme Court or any Court" added by amendment in Section 8 were with an intent to minimise the intervention of judicial authority in context of arbitration agreement. As per the amended Section 8 and 8(1) , the judicial authority has only to consider the question "whether the parties have a valid arbitration agreement". The amended provision, limits the intervention by judicial authority to only on aspect, refusal by judicial authority to refer is confined to only one aspect, when it finds that prima facie no valid arbitration agreement exists.

NEUTRAL CITATION C/SCA/2995/2021 CAV JUDGMENT DATED: 09/05/2024 undefined

146. It was held that the words "notwithstanding any judgment, decree or order of the Supreme Court or any Court", were meant only to those precedents where it was laid down that the judicial authority while making reference under Section 8 shall be entitled to look into various facets of the arbitration agreement, subject matter of the arbitration whether the claim is alive or dead, whether the arbitration agreement is null and void. The above words added in Section 8 cannot be meant for any other meaning.

147. With the above discussion, the challenge to the validity of the Land Grabbing Act' 2020 based on the interpretation of Section 15 by the learned counsels for the petitioners, is liable to be turned down.

(iii) - Contradictions shown with The Specific Relief Act, The Limitation Act and The Transfer of Property Act

148. The next submission is with regard to the alleged inconsistency with Section 6 of the Specific Relief Act. As noted hereinbefore, Sub-section (4) of Section 6 is in the nature of exception to the provisions in Sub-section (1) and Sub-section (2) of Section 6 , which protects possession of even a trespasser. The Page 193 of 417 Downloaded on : Mon May 13 20:36:50 IST 2024 NEUTRAL CITATION C/SCA/2995/2021 CAV JUDGMENT DATED: 09/05/2024 undefined proceedings instituted by a land owner against the 'land grabber', therefore, cannot be said to be hit by Section 6 of the Specific Relief Act. We may, however, note that the contention is about the concept of adverse possession on the premise that Section 5 of the Specific Relief Act recognises mere possessory title and provides that for bringing an action before the Code of Civil Procedure for recovery of possession, mere possessory title is enough.

149. The further submission is that the provisions of Articles 64 , 65 , 66 and 67 , which provide limitation for possession of immovable property have been rendered nugatory by the Land Grabbing Act' 2020 when it makes land grabbing an offence with retrospective effect by virtue of Section 4(2) , which provides that any person who continues to be in occupation of a grabbed land on or after commencement of the Act, shall be guilty of offence under the Land Grabbing Act' 2020.

150. The submission is that Article 64 of the Limitation Act by prescribing period of 12 years from the date of dispossession, recognises the right to bring a suit of possession, based on previous possession, and Page 194 of 417 Downloaded on : Mon May 13 20:36:50 IST 2024 NEUTRAL CITATION C/SCA/2995/2021 CAV JUDGMENT DATED: 09/05/2024 undefined not on title, when the plaintiff in possession of the property has been dispossessed. Articles 65 and 66 recognise hostile possession or adverse possession and put an embargo on filing a suit for immovable property, even based on title, after a period of 12 years. A suit for recovery of possession on the allegations of land grabbing, therefore, cannot be filed under the general laws of Limitation Act when the possessor perfected his possession hostile to the land owner. Such established provisions of law are sought to be defeated by bringing action under the Land Grabbing Act' 2020 even beyond the period of limitation prescribed under the Limitation Act , for recovery of possession of an immovable property, whether based on the title or not.

151. To answer this submission, we may note Section 29(2) of the Limitation Act, 1963 relied by the learned Advocate General, which reads as under :-

152. A bare reading of Section (2) of Section 29 shows that in the event of the period of limitation prescribed in any special law or local law for bringing any suit, appeal or application, different from the period prescribed by the Schedule to the Limitation Act , the provisions of Section 3 shall apply as if such period has been prescribed by the Schedule. Further, for the purpose of determining any period of Limitation prescribed for any suit, appeal or application by any special or local law, the provisions of Sections 4 to 24 (inclusive) providing for expiry, extension, exclusion and computation of time, etc., shall apply, to the extent they are not expressly excluded by such special or local laws.

153. Under the Land Grabbing Act' 2020, though no time period has been provided for bringing action before the Special Court, but the Page 196 of 417 Downloaded on : Mon May 13 20:36:50 IST 2024 NEUTRAL CITATION C/SCA/2995/2021 CAV JUDGMENT DATED: 09/05/2024 undefined period of 30 days has been provided for filing appeal against the order of the Special Court, by an aggrieved person. In any case, there is no express exclusion of the Limitation Act and the general provisions prescribed therein in Article 137 shall apply. It is, thus, to be noted that there is no inconsistency between the provisions of the Limitation Act and the Land Grabbing Act' 2020 insofar as Section 4(2) of the Land Grabbing Act' 2020 which makes the occupation of grabbed land, by a person on or after the commencement of the Act and who continues to be in occupation of a grabbed land, an offence.

154. We may further record that the concept of adverse possession as brought in by Section 27 of the Limitation Act, 1963 providing for extinguishment of the right to property to any person for instituting a suit for possession of any property based on his right to such property, is based on the principle that the plaintiff, the person in possession, who brings a suit to get his right perfected, though does not have a title to property, must have to plead and prove the date on and from which he claims to be in exclusive continuance and undisturbed possession, and also that such possession was actual and to the knowledge of Page 197 of 417 Downloaded on : Mon May 13 20:36:50 IST 2024 NEUTRAL CITATION C/SCA/2995/2021 CAV JUDGMENT DATED: 09/05/2024 undefined the real owner. He is also required to establish a hostile title and communication of which to the real owner. [Ref.:- Krishnamurthy S. Setlur Dead By Lrs vs O. V. Narasimha Setty & Ors28 ].

155. As against this concept of adverse possession, Section 4(2) provides that any person who, on or after commencement of the Act, continues to be in occupation of a grabbed land, belonging to any private person or authority or Government, shall be guilty of an offence under the Land Grabbing Act' 2020. Sub- section (3) of Section 4 provides punishment for the Act of Land Grabbing. This provision being a special law, which has been enacted "to prohibit land grabbing activities" in the State of Gujarat, in no way, can be said to be in conflict with Section 27 of the Limitation Act, inasmuch as, 'land grabbing' is an activity defined in Section 2(e) , where a person recognised as 'land grabber' within the meaning of Section 2(d) occupies or make an attempt to occupy any land over which he or they have no ownership, title or physical possession "without any lawful entitlement". For establishing possession adverse to the 28 [2007 ( 3) SCC 569] Krishnamurthy S. Setlur Dead By Lrs vs O. V. Narasimha Setty & Ors Page 198 of 417 Downloaded on : Mon May 13 20:36:50 IST 2024 NEUTRAL CITATION C/SCA/2995/2021 CAV JUDGMENT DATED: 09/05/2024 undefined land owner, a person against whom the complaint of land grabbing has been made, has to establish that his physical possession to the land in question is protected by law or he has obtained possession by lawful means, on or after the commencement of the Land Grabbing Act' 2020, and has a right to retain the same.

156. As to the provisions of Sections 38 and 39 of the Specific Relief Act, pertaining to perpetual injunction or mandatory injunction, our discussion above about the impact of Section 15 would take care of the issue of conflict as asserted by the petitioner.

157. Further, about Section 53A and Section 58 of the Transfer of Property Act, 1882, pertaining to part performance of the contract and usufructuary mortgage, we may note that the settled law pertaining to the protection of the doctrine of part performance under Section 53A is that to qualify for the protection of the said doctrine, it must be shown that there is a contract to transfer immovable property for consideration and the contract is evidenced by a writing signed by the person sought to be bound by it and from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty.

NEUTRAL CITATION C/SCA/2995/2021 CAV JUDGMENT DATED: 09/05/2024 undefined After establishing these circumstances, it must be further shown that the transferee had in part performance of the contract, either taken possession of the property or any part thereof, or the transferee being already in possession continues in possession in part performance of the contract and had done some act in furtherance of the contract. (Ref.:-

158. Thus, for invoking the equitable doctrine of part performance, it is necessary that there has to be a contract in writing from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty. Part performance also pre-supposes a completed agreement. There can be no part performance where there is no completed agreement in existence. It must be obligatory that what is done must be under the terms of the agreement and by force of the agreement. These principles cannot be applied to a "land grabber" seeking to protect his possession who has not obtained physical possession of any land, by lawful means.

159. Coming to the principle of usufructuary 29 [1982 (1) SCC 237] Sardar Govindrao Mahadik & Anr vs Devi Sahai Page 200 of 417 Downloaded on : Mon May 13 20:36:50 IST 2024 NEUTRAL CITATION C/SCA/2995/2021 CAV JUDGMENT DATED: 09/05/2024 undefined mortgage in Section 58(d) of the Transfer of Property Act, it refers to the delivery of possession by the mortgager, either expressly or by implication of the mortgaged property to the mortgagee and authorise him to retain such possession until payment of the mortgaged money and to receive the rents and profits accruing in the property in lieu of interest or partly in payment of mortgaged money, such transaction is called a usufructuary mortgage. To apply this provision, existence of mortgage within the meaning of Section 58 (a) is necessary, which provides that a mortgage is a transfer of an interest in a specific property for the purpose of securing the payment of money advanced or to be advanced by way of loan, an existing or future debt or the performance of an engagement, which may give rise to a pecuniary liability. The definition itself shows that a mortgage is a transfer of an interest in the land mortgaged and not a mere contract. A registered valid mortgaged deed is, thus, must be in existence to transfer an interest in the property mortgaged.

160. In absence of any contract to the contrary, notwithstanding the fact that the mortgaged money has not been paid by the mortgagee to Page 201 of 417 Downloaded on : Mon May 13 20:36:50 IST 2024 NEUTRAL CITATION C/SCA/2995/2021 CAV JUDGMENT DATED: 09/05/2024 undefined the mortgager, the existence of a registered valid mortgage deed, a registered document valid in the eye of law, is necessary to create a mortgage over the property which again talks of "lawful entitlement" of a mortgagee to retain possession of the mortgaged land as a lawful transfer of interest in his favour. These provisions, in no way, are contravened by the impugned enactment, namely Land Grabbing Act' 2020, which at the cost of repetition, makes physical possession of land violative to law, when it is obtained and retained by unlawful means.

161. In view of the above discussion, applying the doctrine of occupying field, as asserted by the learned counsels for the petitioners, to examine inconsistency in the provisions of the Land Grabbing Act' 2020 with the Central laws, we do not find any repugnancy. There is no conflict between the State law and the Central laws, referred hereinbefore, as both the laws operate in different fields. It is not a case where any parliamentary law prescribed for making the activity of land grabbing an offence providing for both criminal and civil liability.

NEUTRAL CITATION C/SCA/2995/2021 CAV JUDGMENT DATED: 09/05/2024 undefined

162. The general provisions of Central laws referred above, cannot override the specific legislation enacted by the State Legislature to prevent the Act of Land Grabbing in the State of Gujarat. There is no question of harmonising both the laws as there is no overlapping or collision. We, therefore, hold that the Land Grabbing Act' 2020, a law passed by the State Legislature substantially is a law enacted within the scope of Entry 18 in the State List. The other two Entries, viz. 64 and 65 in the State list cover the incidental provisions enacted in respect of the matter of Land Grabbing covered by Entry 18 of the State List. By applying the doctrine of pith and substance, on an exhaustive analysis of the provisions of the Land Grabbing Act' 2020 it appears that by and large, the impugned law falls within the four corners of the State List (List II) and alleged encroachment, even if perceived, is purely incidental and inconsequential as the law made by the State Legislature is not on a subject covered by the Concurrent List. There is no question of inconsistency with or repugnancy to any previous laws made by the Parliament. The result is that there was no need or requirement of obtaining assent of the Page 203 of 417 Downloaded on : Mon May 13 20:36:50 IST 2024 NEUTRAL CITATION C/SCA/2995/2021 CAV JUDGMENT DATED: 09/05/2024 undefined President under Article 254(2) of the Constitution, to save the impugned law.

(iv) Conclusion on Repugnancy and Presidential Assent :-

The doctrine of pith and substance, overlapping, incidental encroachment, are, in fact species of the same law. It is quite possible to apply these doctrines together to examine repugnancy or otherwise of an encroachment. In a case of overlapping, the Courts have taken the view that it is advisable to ignore an encroachment, which is merely incidental in order to reconcile the provisions and harmoniously implement them. If ultimately, the provisions of both the Acts coexist without conflict, then it is not expected of the Courts to invalidate the law in question.

NEUTRAL CITATION C/SCA/2995/2021 CAV JUDGMENT DATED: 09/05/2024 undefined

164. It is a settled canon of law that courts normally would make every effort to save a statute and resolve the conflicts/repugnancy, if any, rather than invalidating the statute. Therefore, it will be the purposive approach to permit both the enactments to operate in their fields by applying them harmoniously. The Court also has to keep in mind the distinction between "ancillaries incidentally affecting" and overlapping. The distinction is that "ancillaries" relates to a law which merely falls in the periphery of Entry and the "incidental effect" relates to a law, which in potential is not controlled by the other legislation. A self-contained Code is an exception to the Rule of referential legislation. The slight overlapping would not take the colour of repugnancy. The schemes of Land Grabbing Act' 2020 and the Central Legislations (referred by learned counsels) did not admit of any conflict or repugnancy in their implementation.

165. In the instant case, the doctrine of pith and substance would clearly be applicable and rigours of Article 254(1) are not attracted. Even if fractional overlapping is accepted between the State statute with Central laws, then it will be saved by the doctrine of Page 205 of 417 Downloaded on : Mon May 13 20:36:50 IST 2024 NEUTRAL CITATION C/SCA/2995/2021 CAV JUDGMENT DATED: 09/05/2024 undefined incidental encroachment and it shall also be inconsequential as both the constituents have enacted the respective laws within their legislative competence and, moreover, both the Statute can eloquently coexist and operate with compatibility. On the arguments advanced on behalf of the petitioners, it is not permissible in law to disintegrate the provisions of the Act for the purposes of determining legislative competence. Such approach shall be contrary to the accepted canon of interpretative jurisprudence that the Act should be read as a whole for the purpose [Reference has been taken of Bondu Ramaswamy & Ors vs Bangalore Development Authority30 ].

166. There is one more aspect of consideration for arriving at a final conclusion on the issue. The Apex Court in Offshore Holdings P.Ltd vs Bangalore Development Authority31 , while testing the validity of certain provisions of the Bangalore Development Authority Act, 1976 has referred to the 'Concept of Fragmentation' while testing the said Act holding that it was referable to Entry 5 and 18 of List II of the Seventh Schedule. An argument was advanced by the appellants therein that adopted provisions 30 [( 2010) 7 SCC 129] Bondu Ramaswamy & Ors vs Bangalore Development Authority 31 [(2011) 3 SCC 139] Offshore Holdings P.Ltd vs Bangalore Development Authority Page 206 of 417 Downloaded on : Mon May 13 20:36:50 IST 2024 NEUTRAL CITATION C/SCA/2995/2021 CAV JUDGMENT DATED: 09/05/2024 undefined of the Land Acquisition Act , in terms of Section 36 of Banglore Development Authority Act, are relatable only to Entry 42 of List III and such law enacted by Parliament cannot be construed incidental to any other law. While holding that the Bangalore Development Authority Act was referable to Entries 5 and 18 of List II of Seventh Schedule, the question considered therein was whether it is feasible and possible to disintegrate the provisions of the Act for the purposes of examining their legislative competence.

167. Referring to the "Concept of Fragmentation", it was held therein that the Concept of 'Fragmentation' may not be an appropriate tool to be used for repugnancy or plea of ultra vires. The collective and cohesive reading of an Act has been considered by the Courts as a prerequisite to interpretation. Thus, the Concept of 'Fragmentation' is least applied by the Courts for proper interpretation. The observations in paragraphs '109 to 114' are relevant to be noted hereinunder :-

In this manner, he termed the determination of the "matter" of the statute as a threshold inquiry which precedes and must proceed independently of the content of the competing Page 208 of 417 Downloaded on : Mon May 13 20:36:50 IST 2024 NEUTRAL CITATION C/SCA/2995/2021 CAV JUDGMENT DATED: 09/05/2024 undefined legal categories whose application flow from it. He acknowledges a situation where although the pith and substance of the whole statute is such as to come within an available class of subjects, the separately considered matter of a particular provision might not. This is the very situation that has seized us in the present case and in Laskin's own words, "Does the good redeem, perish with, or survive the bad?"

113. In a variation of the view that the statute is to be adjudged as an integrated whole Laskin, in the above discussed backdrop, entertains the alternative of disaggregating the statute into components or fragments as preceding such judgment as follows:

114. Fragmentation is neither synonymous with nor an alternative to the doctrines of severability or ancillariness. Later are the doctrines which can be applied by themselves to achieve an end result, while fragmentation, Page 210 of 417 Downloaded on : Mon May 13 20:36:50 IST 2024 NEUTRAL CITATION C/SCA/2995/2021 CAV JUDGMENT DATED: 09/05/2024 undefined as already noticed, is only a step prior to final determination with reference to any of the known principles. In this manner fragmentation of statute may be theoretically undertaken in the process of arriving at the pith and substance of a statute or even determining the field of ancillariness."

168. By drawing distinction between the "Doctrine of severability" and the "Concept of Fragmentation", it was held in Offshore Holdings Private Ltd.31 that for applying the 'Doctrine of severability', it is to be determined whether the valid parts of the statutes are separable from the invalid parts thereof and it is the intention of the Legislature, which is the determining factor. The test to be applied is whether the Legislature would have enacted the valid part, if it had known that the rest of the Statute was invalid. Another principle used by the Courts while applying the doctrine of severability is to find out whether the separated valid parts form a single scheme which is intended to operate as a whole independent of the invalid part. However, severability is not fragmentation. Fragmentation will be effectively used to apply at the threshold stage prior to declaration of repugnancy or ultra vires of a statute, while severability is a doctrine to Page 211 of 417 Downloaded on : Mon May 13 20:36:50 IST 2024 NEUTRAL CITATION C/SCA/2995/2021 CAV JUDGMENT DATED: 09/05/2024 undefined be applied post such declaration.

169. Applying the test laid down therein, we may further note that the entire Land Grabbing Act' 2020 is directed towards prohibiting "land grabbing activities" in the State of Gujarat by making it an offence with imprisonment for a term of not less than 10 years and civil consequence of fine, which extends to Jantri value of the property. Different provisions of the Land Grabbing Act' 2020 are found to be pointing towards the one central matter, i.e. "land grabbing". The provisions in the entire scheme of the Land Grabbing Act' 2020, prescribing procedure of trial, etc. cannot be conceived as having an independent direction. Having exhaustively gone through each and every alleged offending provision of the Land Grabbing Act' 2020, we do not find any reason to apply the Concept of Fragmentation to determine the pith and substance of the Act, which we held to be "land grabbing" related to "land" referrable to Entry 18 of List II of the Seventh Schedule. Even if various provisions of the Act are fragmented, they still lead to the same result and the pith and substance of the Act would still be traceable to Entries 18, 64 and 65 of the List II of the Seventh Schedule.

NEUTRAL CITATION C/SCA/2995/2021 CAV JUDGMENT DATED: 09/05/2024 undefined The main purpose of the Act is to curb the offence of "land grabbing" and inquiry into ownership and title of the person in occupation is incidental to the main inquiry, as to the lawful entitlement of the person alleged as land grabber, to retain the possession of the "grabbed land".

170. Having examined the pith and substance of the impugned Legislation and holding that it is relatable to Entries 18, 64 and 65 of List II of the Seventh Schedule of the Constitution, the question of repugnancy can hardly arise. Furthermore, the constitutionality of the Land Grabbing Act' 2020 is not determined by the degree of invasion into the domain assigned to the other Legislature, by its pith and substance. The true nature and character of the Legislation has been analysed to find out whether the matter falls within the domain of the enacting legislation. Incidental or ancillary encroachment on a forbidden field does not affect the competency of the Legislature to make the impugned law.

171. Thus, in our view, the ground of repugnancy raised by the petitioners in the present set of petitions, merits rejection.

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172. Coming to the judgments relied by Mr. Asim Pandya, learned senior advocate and Mr. Masoom Shah, learned advocate, in the case of Forum for People's Collective Efforts (FPCE)3, the ratio thereof does not apply to the facts of the instant case, inasmuch as, the Apex Court therein was faced with the question of constitutional validity of the West Bengal Housing Industry Regulation Act, 2017 enacted by the Legislature in light of the existing Central law, viz. Real Estate (Regulation and Development Act ), 2016. There is no dispute that the subject of both the Central and the State enactments was covered by Entries 6 and 7 of the Concurrent List to the Seventh Schedule to the Constitution. The State law was found to be 'copy and paste' replica of the Central Legislation (except for certain provisions which were inconsistent with RERA) and covering the field which was occupied by the Central enactment. In the said facts and circumstances of the case, it was, thus, held that the West Bengal Act was repugnant to RERA and was hence unconstitutional.

173. The other decisions referring to the law discussed above also lead to the same conclusion as drawn by us hereinabove.

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174. As regards the decision in State Of Orissa vs M. A. Tulloch And Co.32 , the Apex Court while deciding the validity of the Orissa Mining Areas Development Fund Act has noted that the Orissa Act had been rendered ineffective by a Central enactment, viz. the Mines And Minerals (Development And Regulation) Act, 1957 , which came into force on 01.06.1958. It was noted that the Orissa Act had been enacted by virtue of the legislative power conferred by Entry 23 of the State Legislative List reading "Regulation of mines and mineral development subject to the provisions of List I with reference to regulation and development under the control of the Union." The legislative entry under which the later Central Act was enacted was item 54 of the Union List (List I), "Regulation of mines and mineral development to the extent to which such regulation and development under the control of the Union is declared by Parliament by law to be expedient in the public interest."

175. The dispute in the said case was concerning the fees which became due from the period July, 1957 to March 1958. The legality of the said demand was challenged on the ground that on the coming into force of the Central Act, 32 [AIR 1964 SC 1284] State Of Orissa vs M. A. Tulloch And Co.

NEUTRAL CITATION C/SCA/2995/2021 CAV JUDGMENT DATED: 09/05/2024 undefined 1957, the Orissa Act ceased to be operative by reason of the withdrawal of the legislative competence by force of the Entry in the said List being subject to Parliamentary declaration and the law enacted by Parliament.

176. Having examined the provisions of the Orissa Act, the State enactment and the Central Act, it was noted that Entry 23 provides that the legislative competence of the State Legislature is subject to the provisions of List I with respect to regulation and development under the control of the Union and Entry 54 in List I requires a declaration by law that regulation and development of mines should be under the control of the Union in public interest. Therefore, if a Central Act has been passed for the purpose of providing for the conservation and development of minerals, and if it contains the requisite declaration, then it would not be competent to the State Legislature to pass an Act in respect of the subject-matter covered by the said declaration. It was further noted that the Central Act of 1948, which was pre- constitution law, did not contain the requisite declaration as in terms of Entry 54, however, the Central Act 67 of 1957, which was a post-constitution enactment contains the Page 216 of 417 Downloaded on : Mon May 13 20:36:50 IST 2024 NEUTRAL CITATION C/SCA/2995/2021 CAV JUDGMENT DATED: 09/05/2024 undefined requisite declaration by the Union Parliament under Entry 54 and that the Act covers the same field as that of Act of 1948 in regard to Mines and Mineral Development. It was, thus, held that there can be no doubt that the field covered by the Orissa Act (impugned Act) is covered by the express provisions contained in Central Act of 1957, which was wider in its scope and amplitude and confer larger powers on the Central Government than the corresponding Act of 1948. When such was the position, it was held that the inconsistency was demonstrated not by a detailed comparison of the provisions of the two statutes, but by the mere existence of the two pieces of legislation. By the specific provision of the Central Enactment of 1947, it was clear that the intention of Parliament was to cover the entire field and, thus, to leave no scope for the argument that untill rules were framed, there was no inconsistency and no super- session of the State Act.

177. It was held that if by reason of the declaration by Parliament the entire subject matter of "conservation and development of minerals" has been taken over, for being dealt with by Parliament, thus depriving the State of the power which it therebefore possessed, Page 217 of 417 Downloaded on : Mon May 13 20:36:50 IST 2024 NEUTRAL CITATION C/SCA/2995/2021 CAV JUDGMENT DATED: 09/05/2024 undefined it would follow that the "matter" in the State List is, to the extent of the declaration, subtracted from the scope and ambit of Entry 23 of the State List. There would, therefore, after the Central Act of 1957, be "no matter in the List" to which the fee could be related in order to render it valid.

178. In view of the above discussion, in the facts of the instant case, the said principle would not be applicable.

Part II - Manifest Arbitrariness - Violation of Article 14 of the Constitution (A) - Arguments of the learned Counsels for the Parties:-

179. Further, Ms. Megha Jani, learned advocate assisted by Mr.Arjun Joshi, learned advocate, Mr. Amit S. Thakker, Ms.Aditi Sheth and Ms. Krisha Bhimani made submissions on the challenge to the validity of the impugned Act on three grounds namely:-

NEUTRAL CITATION C/SCA/2995/2021 CAV JUDGMENT DATED: 09/05/2024 undefined

(ii) It's provisions violate Article 14;

(iii) The procedure of civil and criminal trial provided by the impugned legislation is manifestly arbitrary.

180. Her contention is that the following aspects of the Act makes it manifestly arbitrary, which is a ground to challenge the validity of a legislative enactment, recognized by the Apex Court in Shayara Bano vs Union Of India And Ors. Ministry Of Women33 .

181. To elaborate her submission, Ms. Jani would contend that the main features of the Act, which are inextricably mixed up are manifestly arbitrary, such as:-

[2017 (9) SCC 1] Shayara Bano vs Union Of India And Ors. Ministry Of Women Page 219 of 417 Downloaded on : Mon May 13 20:36:50 IST 2024 NEUTRAL CITATION C/SCA/2995/2021 CAV JUDGMENT DATED: 09/05/2024 undefined

(ii) It applies to everyone equally guilty of whether positive action, omission, providing aid or instigation for the act of land grabbing. The same term of imprisonment is provided though the criteria of violation may not be the same.

(iii) The Act blends Civil and Criminal Procedure in the inquiry into the allegation of commission of offence of land grabbing. The result is that the finding recorded during the course of civil trial will be binding in criminal proceedings.

(iv) Serious civil and criminal consequences have been provided irrespective of nature and gravity of offence. This aspect needs close examination by this Court.

(v) The definition of "land grabbing" under the Act has a swaying effect by including the dispute pertaining to title, possession etc. which is essentially a civil dispute.

(vi) The Special Courts are left to follow their own procedure by complying with the principles of natural justice, which confers unfettered discretion upon the Special Courts not to try civil disputes by complying with Page 220 of 417 Downloaded on : Mon May 13 20:36:50 IST 2024 NEUTRAL CITATION C/SCA/2995/2021 CAV JUDGMENT DATED: 09/05/2024 undefined the provisions of the Code of Civil Procedure .

(v) The power conferred upon the Special Court under Section 9(2)(3) for trial of civil dispute and 9(4) for trial of criminal dispute as also sub-section(5) of Section 9 are couched in a manner that the Legislature has conferred unguided and unfettered discretionary power to the Special Courts in the matter of trial of both civil and criminal liability. The result is that while trying the Civil Suit or Criminal proceedings, the Special Court would be competent to give a go- by to the procedure prescribed in the Code of Civil and Criminal Procedure.

(vi) The provision pertaining to imposition of fine upto Jantri value of the property has no clarity as to with reference to what date, the Jantri value of the property would be applicable to compute the fine.

(vii) Sub-section (8) of Section 9 conferring power on the Special Court also provides that the Special Court may pass an order for restoration of possession to the complainant, after evicting any person by force, who may be in the possession of the property.

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(viii) Sub-section (9) further speaks of payment of compensation and profits earned by the person in possession besides the Jantri value of the property, in an unguided manner.

(ix) The provisions are so harsh that they make the "land grabbing" offence punishable with minimum 10 years of imprisonment which may extend to 14 years, which is the period of life imprisonment under the Indian Penal Code .

(x) For trial of such an offence, where civil and criminal both aspects are to be looked into, the powers conferred on the Special Court should have been circumscribed by certain limits provided in the Act itself, so that all excesses in the matter of implementation of the Act would have been checked.

(xi) Further the provisions of the Act' 2020 that the information about the commission of offence of "land grabbing" cannot be recorded by a police officer unless prior approval of the District Magistrate, in consultation with the Committee notified by the Government, is nothing but a mechanism to scuttle the criminal machinery, which otherwise can be set in motion by writing a complaint of an offence Page 222 of 417 Downloaded on : Mon May 13 20:36:50 IST 2024 NEUTRAL CITATION C/SCA/2995/2021 CAV JUDGMENT DATED: 09/05/2024 undefined committed under the Indian Penal Code . No guidance has been provided to deal with the complaints of "land grabbing" before information of the same is registered by a police officer.

(xii) No qualification of the member of the committee has been prescribed under the Act. The result is that any one can be included as a member of the committee, which leads to uncertainty, in implementation of the statute.

(xiii) The Statement of Objects and Reasons of the Land Grabbing Act' 2020 has been read over by Ms. Megha Jani to assert that the Act' 2020 contains the statement that the legislature has brought the enactment as 'public order' is being adversely affected by the unlawful activities of the land grabbers in the State, which shows that the Act' 2020 is aimed at securing the "public order". However, the provisions of the Act are set out in a manner that they equate the 'private land' and 'Government land'.

(xiv) A private dispute with respect to a private land, where the issues pertaining to ownership, title and possession are to be adjudicated, has no correlation to the 'public Page 223 of 417 Downloaded on : Mon May 13 20:36:50 IST 2024 NEUTRAL CITATION C/SCA/2995/2021 CAV JUDGMENT DATED: 09/05/2024 undefined order'. Private land and the Government land are, thus, put up on the same pedestal. Moreover, "breach of public order" has not been made an offence under the Act' 2020.

(xv) As the impugned enactment equates the Government land and the private land, the provisions making "land grabbing" an offence even with respect to private lands belonging to a private persons, is not based on any ineligible differentia and has no nexus with the object, the legislative seeks to achieve, which is securing 'public order' in the State. Neither the land grabbing has been made an offence for the breach of public order nor the 'land grabber' is defined as a person who is guilty of breach of maintenance of public order. The dispute pertaining to private land, between two or few individuals, in any case, has no bearing on the public order.

(xvi) The judgments of the Apex Court in the case of Ram Manohar Lohia vs. The State of Bihar and another34, Mustakmiya Jabbarmiya Shaikh vs. M.M. Mehta , Commissioner of Police35 and Banka Sneha Sheela vs. State of Telangana 34 [AIR 1966 SC 740] Ram Manohar Lohia vs. The State of Bihar and another 35 [(1995) 3 SCC 237] Mustakmiya Jabbarmiya Shaikh vs. M.M. Mehta, Commissioner of Police Page 224 of 417 Downloaded on : Mon May 13 20:36:50 IST 2024 NEUTRAL CITATION C/SCA/2995/2021 CAV JUDGMENT DATED: 09/05/2024 undefined and Ors.36] have been placed to make us understand the meaning of public order, to vehemently assert that the inclusion of two separate classes of lands for the offence of land grabbing, both against private land and Government land, under the impugned enactment Act' 2020 has no nexus with the object sought to be achieved, which is maintenance of public order. Unequals are treated as equals without any rationale.

(xvii) To understand the object of the Act, applying Mischief rule, the mischief which is sought to be addressed by the enactment, the purpose or object of the Act has to be determined and the material which can be used for such an exercise are:-

(xviii) Referring to the observation in Paragraph No.'9' of the decision of Mustakmiya35, it was argued that the distinction has to be drawn between the "law and order" and "maintenance of public order". In order to bring the activities of a person within the expression of "acting in a manner 36 [( 2021) 9 SCC 415] Banka Sneha Sheela vs. State of Telangana and Ors .

NEUTRAL CITATION C/SCA/2995/2021 CAV JUDGMENT DATED: 09/05/2024 undefined prejudicial to the maintenance of public order", the fall out, the extent and reach of the alleged activities must be of such a nature that they travel beyond the capacity of the ordinary law to deal with the offender or to prevent his subversive activities affecting the community at large or a large section of the society. The degree of disturbance and its impact upon the even tempo of life of the society or the people of a locality which determines whether the disturbance caused by such activity amounts only to a 'breach of law and order', or it amounts to 'public order.' Only if the activity falls within the category of "disturbance of public order", then it becomes essential to treat such a criminal and deal with him differently than an ordinary criminal under the law as his activities would fall beyond the frontiers of law and order disturbing the even tempo of life of the community of the specified locality.

(xix) Much emphasis has been laid to the observations made by the Apex Court in the aforesaid decisions to argue that the act of the "land grabbing" by itself is not determinative of its own gravity, inasmuch as, the activity of occupying private person's land may not affect adversely the maintenance Page 226 of 417 Downloaded on : Mon May 13 20:36:50 IST 2024 NEUTRAL CITATION C/SCA/2995/2021 CAV JUDGMENT DATED: 09/05/2024 undefined of public order. There must be material to show that there has been a feeling of insecurity among the general public and such act must be said to have direct bearing on the question of maintenance of public order. The commission of offence will not necessarily come within the purview of public order, which can be dealt with under ordinary general law of the land. With this idea of difference between the expressions "maintenance of land and order" and "acting in a manner prejudicial to the maintenance of public order", it was vehemently argued that in no manner, a person who occupies land belonging to a private person can be said to be threat to the maintenance of public order, so much so that such an act of that person creates panic or fear in the minds of members of the public upsetting the even tempo of life of the community, or results in bringing a feeling of insecurity among the general public.

(xx) The submission, thus, is that the impugned enactment though is aimed at maintenance of law and public order and to address the disturbance of public order, but in the garb of maintenance of public order, even the activity related to a land belonging Page 227 of 417 Downloaded on : Mon May 13 20:36:50 IST 2024 NEUTRAL CITATION C/SCA/2995/2021 CAV JUDGMENT DATED: 09/05/2024 undefined to a private person which gives rise to an ordinary civil dispute between two private individuals, has been brought under the umbrella of the impugned enactment Act' 2020 giving it a colour of criminal activity.

(a) Mischief Rule

182. It was further submitted that :-

183. It was further urged that manifest arbitrariness, a judicially evolved principle to test the validity of the Act, is to be applied to examine the validity of the impugned law namely, the Land Grabbing Act' 2020 as various provisions of the impugned Act, both procedural and substantial are violative of Article 14 of the Constitution.

184. Elaborating this submission, it was argued that the impugned Act makes every act of Land Grabbing Act' 2020 an offence, irrespective of the value of the land allegedly grabbed and the nature of evil, which is to be looked into in individual cases, to decide on the gravity of the offence and the punishment commensurate to it. The Act ' 2020 makes every action irrespective of the aforesaid factors, a criminal offence punishable with rigorous imprisonment. Several provisions of the Act, which are stated to be manifestly arbitrary, vague, contrary to the rule of law, hit by Page 232 of 417 Downloaded on : Mon May 13 20:36:50 IST 2024 NEUTRAL CITATION C/SCA/2995/2021 CAV JUDGMENT DATED: 09/05/2024 undefined equality principle and make the Act' 2020 unworkable, which hit at the constitutionality of the Legislation, as per the contention of the learned counsel for the petitioners, have been placed before us. The contention is that to understand the said aspect, the provisions of the Act are required to be analyzed separately.

(i) Section 2(e) of the impugned Act makes every activity of land grabber to occupy or attempt to occupy with or without the use of force, threat, intimidation and deceit, has been included within the meaning of land grabbing, while making it a criminal offence when there is no mens rea, if the above three situations, namely force, threat, intimidation and deceit are excluded. The fact that the activity of the land grabber without the use of the above, force, threat, intimidation and deceit, to occupy or attempt to occupy, has been made a criminal offence, is a reflection of vagueness and arbitrariness of the statute, inasmuch as, mens rea is the most important ingredient of any criminal activity.

(ii) Inclusion of successor-in-interest for making him liable for the activity of a person who actually commits the act of land grabbing, Page 233 of 417 Downloaded on : Mon May 13 20:36:50 IST 2024 NEUTRAL CITATION C/SCA/2995/2021 CAV JUDGMENT DATED: 09/05/2024 undefined within the meaning of "Land Grabber" under Section 2(d) , is against the principles of criminal jurisprudence, inasmuch as, no criminal liability can be imposed on a person who occupies land, possession of which has not been taken by him by adopting illegal means. The contention is that the person, who has committed the activity of land grabbing, can only be held liable for the criminal act done by him and criminal liability cannot be fastened on any other person for the act of another.

(iii) Section 4 while prohibiting the land grabbing and making it an offence also includes a person, who continues to be in occupation of a grabbed land. The factum of possession of a grabbed land by a person in occupation cannot be a reason to make him liable for activity of land grabbing, inasmuch as, the role played by the person concerned (in occupation) may be different than the person who committed the activity of land grabbing by occupying or attempt to occupy, with or without the use of force, threat, intimidation and deceit.

(iv) If these provisions of the Act' 2020 are read, even a bona fide purchaser of a grabbed Page 234 of 417 Downloaded on : Mon May 13 20:36:50 IST 2024 NEUTRAL CITATION C/SCA/2995/2021 CAV JUDGMENT DATED: 09/05/2024 undefined land can be held to be a land grabber, making him liable for the offence of land grabbing with the punishment of imprisonment, which is grave for a term not less than 10 years.

(v) Section 6 imposes liability on the Director, Manager, Secretary or other officer of the company, for the contravention of the impugned Act, if the offence is committed by the company. Making the Director or other officers of the company vicariously guilty of the offence of land grabbing by deeming provision, further establishes the vagueness and far reaching consequences of the impugned Act, which aspect has not been clarified by the legislation.

(vi) Section 7 (2) of the impugned Act confers jurisdiction on the State Government to decide any question relating to the jurisdiction of any Special Court, which is contrary to the principle of separation of power, which is the basic feature of the Constitution, inasmuch as, the question of jurisdiction of a Court is a legal question which can only be decided in a judicial proceeding. Conferring power on the State to decide the dispute pertaining to the question of jurisdiction of the Special Court by Section 7(2) blurs the distinctive line Page 235 of 417 Downloaded on : Mon May 13 20:36:50 IST 2024 NEUTRAL CITATION C/SCA/2995/2021 CAV JUDGMENT DATED: 09/05/2024 undefined between the judiciary and the executives, drawn clearly by the Constitution of India.

(vii) Section 9(1) confers suo motu power on the Special Court to take cognizance of the cases, for the alleged act of land grabbing committed whether before or after the commencement of the Act. The result is that the Special Court can take cognizance of any alleged act of land grabbing even committed prior to commencement of the Act' 2020. Thus, making the legislation retrospective, meaning thereby that any activity of land grabbing committed prior to the commencement of the impugned Act can be held to be "land grabbing"

section (8) of Section 9 confers powers on the Special Court to evict a person who is in possession of the property, once the offence of land grabbing is proved. Sub-section (9) provides for compensation in terms of money for the activity of land grabbing, which shall not be less than the amount equivalent to the Jantri value of the land grabbed. Thus, stringent provisions of sub-section (7), (8) and (9) of Section 9 providing for the procedure and powers of the Special Courts are without any guiding principles.

(x) Liberty granted to the Special Courts to derive its own procedure in the matter of determination of civil and criminal liability Page 237 of 417 Downloaded on : Mon May 13 20:36:50 IST 2024 NEUTRAL CITATION C/SCA/2995/2021 CAV JUDGMENT DATED: 09/05/2024 undefined as also the discretion to the Special Court to not deliver its decision or order until both civil and criminal proceedings are completed, is proof of manifest arbitrariness in exercise of the legislative power of the State.

(xi) Shifting of burden of proof upon the person against whom the allegations of land grabbing has been made by virtue of Section 11 of the impugned Act is further proof of tinkering with the common principles of criminal law that it is the duty of the prosecution to prove the allegations of the commission of criminal offence beyond reasonable doubt.

(xii) Sub-section (2) of Section 11 which confers the powers on the Special Court to draw presumption against any person in possession of movable or immovable property which cannot be satisfactorily accounted or disproportionate to his own source of income, does not have any relation with any of the provisions of the impugned Act, which makes the activity of the land grabbing an offence. No inquiry can be permitted under several provisions of the Act to ascertain as to whether the pecuniary resources are disproportionate to the source of income of a Page 238 of 417 Downloaded on : Mon May 13 20:36:50 IST 2024 NEUTRAL CITATION C/SCA/2995/2021 CAV JUDGMENT DATED: 09/05/2024 undefined person against whom the allegation of the land grabbing has been made.

(xiii) Section 12 puts a rider on the registration of the complaint of commission of an offence under the impugned Act by a police officer, without the prior approval of the District Collector in consultation with the Committee. The effect of this provision is that a police officer is empowered to refuse to register the information of commission of a criminal offence, unless a prior approval is granted by the District Collector and the Committee. Deferment of registration of the complaint or information of commission of a criminal offence by giving power to the Executives, the members of the Committee or the District Collector, to make an inquiry to examine the correctness of the complaint is against the provisions of Section 154 of the Code of Criminal Procedure, which mandates the police officer to register an information of commission of a cognizable criminal offence, without any inquiry.

(xiv) Section 9 which confers suo motu powers on the Special Courts to take cognizance of complaint of commission of criminal offence is incoherent to the Page 239 of 417 Downloaded on : Mon May 13 20:36:50 IST 2024 NEUTRAL CITATION C/SCA/2995/2021 CAV JUDGMENT DATED: 09/05/2024 undefined provisions of Section 12 , which requires a preliminary inquiry by the Committee when the information was brought before the police officer.

(xv) Section 12A which provides for appeal to the High Court, is the only statutory remedy to an aggrieved person that too within the limitation of 30 days from the date of the judgement or the order. The remedy is only against the final decision of the Special Courts and no appeal is provided against the interim order. The statutory remedy to aggrieved persons is, thus, illusionary. Further, in view of the provisions of the appeal brought by way of an amendment, with the incorporation of Section 12A, finality cannot be attached to the judgement of the Special Courts, as provided in Section 9(7) .

(xvi) Section 15 gives overriding effect to the provisions of the impugned Act against any decree or order of the Court or any other Tribunal or authority. It gives overriding effect to the provisions of the Act over an agreement arrived at between the parties. First part of Section 15 giving it overriding effect against any decree or order of the Court, is contrary to the principles of Page 240 of 417 Downloaded on : Mon May 13 20:36:50 IST 2024 NEUTRAL CITATION C/SCA/2995/2021 CAV JUDGMENT DATED: 09/05/2024 undefined separation of power. The fact is that a decree or order passed by a Court of law inter se parties determining their rights and liabilities has been nullified. The supersession of judicial verdict by the legislature is completely prohibited as it encroaches upon the principles of separation of powers between the legislature and the judiciary.

(xvii) Section 17 makes the Act' 2020 retrospective, inasmuch as, it nullifies any transaction or alienation of the land grabbed or any part thereof by way of sale, lease etc. made even before the commencement of the Act.

(xviii) Rules framed in exercise of powers under Section 16 of the Act, namely the Gujarat Land Grabbing (Prohibition) Rules, 2020 are having overreaching effect as many of the provisions therein, go beyond the scope of the Act itself. Rule 5(2) which confers power on the Collector or the State Government to take suo motu cognizance of any allegation of land grabbing of a Government land, in a case where the person against whom allegations of land grabbing are made is a "head strong person", and proceed for inquiry under sub- rule (3) to sub-rule (10), goes beyond the Page 241 of 417 Downloaded on : Mon May 13 20:36:50 IST 2024 NEUTRAL CITATION C/SCA/2995/2021 CAV JUDGMENT DATED: 09/05/2024 undefined scope of the Act' 2020, where the power to take suo motu cognizance and inquiry has been conferred upon the Special Court only. Moreover, who can be termed as "Head strong person" has not been defined in the Act or the Rules which makes the provision of Rule 5(2) vague as it confers unbridled power on the Collector or the State Government to label any person a "head strong person" to initiate inquiry against him under Rule 5.

(xix) Rule 5(8) confers jurisdiction upon the Committee to decide the future course of action including filing of an FIR on consideration of the inquiry report drawn as per Rule 5, which further goes beyond the provisions of the Section 12(a) , conferring jurisdiction upon the Committee to grant approval for registration of the First Information Report on an information received by a police officer about the commission of an offence under the impugned Act.

(xx) It was further argued that the constitution of the Committee defined in Section 2(a) which has been conferred an important function to inquire into the allegations of the land grabbing, has not been provided in the impugned Act.

NEUTRAL CITATION C/SCA/2995/2021 CAV JUDGMENT DATED: 09/05/2024 undefined (xxi) Section 12(a) speaks of the Committee notified by the Government. The power given to the State Government to constitute a Committee, which has been conferred important function of inquiry at the inception stage, on receipt of the complaint of land grabbing, is not guided under the impugned enactment. The constitution of the Committee is a legislative Act, delegation of the legislative power that too in an unguided, uncanalized manner makes the delegation excessive.

(xxii) From a comprehensive reading of various provisions of the impugned enactment, it is evident that there is high possibility of abuse of the process of the Court and the powers conferred on the executives such as Committee to make inquiry into the allegations of complaint of land grabbing.

(xxiii) The manner in which the provisions of Section 9(5) are constructed giving unbridled power to the Judge manning the Special Court to decide as to how and in what manner he will proceed on the complaint which may result into imposition of both civil and criminal liability, shows that it would be easy for the Judge to proceed according to his own whims and fancies.

NEUTRAL CITATION C/SCA/2995/2021 CAV JUDGMENT DATED: 09/05/2024 undefined (xxiv) The law of evidence has also been tinkered with by the provisions contained in Section 9(5) which makes the accused of land grabbing a competent witnesses for the defence to give evidence in disproof of the charge made against him in criminal proceedings. The manner in which Section 9(5) has been worded for appreciation of evidence adduced in civil and criminal proceedings, it is against the settled principles of law of evidence.

(xxv) The fact that the Judge may decide the order in which the civil and criminal liability against the land grabber be initiated, would result in contradictions in many ways in conclusion of both civil and criminal proceedings. For proceedings in criminal trial, accused has a right to remain silent whereas if civil proceedings starts first, the accused has to enter into the witness box and will have to speak. What would happen to the evidence of the accused recorded in the civil proceedings?, there is no guidance in the Act' 2020. The result is that the evidence recorded in civil matter may influence or impact the mind of the Judge in criminal proceedings, if taken later. Further both civil and criminal proceedings are to be Page 244 of 417 Downloaded on : Mon May 13 20:36:50 IST 2024 NEUTRAL CITATION C/SCA/2995/2021 CAV JUDGMENT DATED: 09/05/2024 undefined conducted by the Specially Designated Courts. The result is that the same Judge who has recorded evidence in civil proceedings is prone to be influenced or impacted by the evidence adduced in civil matter while conducting the criminal trial. The quality of prosecution evidence is compromised in case of pendency of the criminal matter and civil proceedings started first, as it would allow any witness to improvise or change his version depending upon the statement of the accused in civil matter where the accused is bound to speak.

(xxvi) The discretion granted to the Special Court to keep the judgement pending until both civil and criminal proceedings are completed, is contrary to the procedure prescribed in Section 353 of the Code of Criminal Procedure and Order XX, Rule (1) of the Code of Civil Procedure , which mandate every Court drawing criminal or civil proceedings to pronounce the judgement in the open Court, after hearing is concluded either at once or as soon as thereafter, as may be practicable. It is mandated under both Civil and Criminal Code that as soon as hearing is completed, the Page 245 of 417 Downloaded on : Mon May 13 20:36:50 IST 2024 NEUTRAL CITATION C/SCA/2995/2021 CAV JUDGMENT DATED: 09/05/2024 undefined pronouncement or delivery of judgement be made.

With these submissions, it was vehemently argued that several provisions of the impugned Act are inextricably linked and cannot be separated. All provisions noted hereinabove are taken individually and together would make the entire Act' 2020 unworkable being hit by the Principle of equality, rule of law, the principle of vagueness of the statute and hit by constitutional provisions. The result is that the entire Act' 2020 is to be declared ultra vires.

185. To support the above submissions, reliance has been placed upon the decisions of the Apex Court noted as under:-

186. Mr. Virat Popat, learned advocate adding to the submissions made by Ms.Megha Jani, noted hereinabove, would contend that the entire Act is unconstitutional as certain provisions of the Act in operation are manifestly arbitrary, and if they are implemented, they would lead to arbitrariness, chaotic situation and would make the Act' 2020 wholly unworkable.

187. Elaborating his submissions, it was urged that the "land grabbing" is a cognizable offence, as worked out under the impugned enactment. As per Section 154 of the Code of Criminal Procedure, every information relating to a cognizable offence, even if given orally to a police officer in-charge of the police station, shall have to be reduced in writing by him and registered necessarily, whereas under the impugned enactment, Section 12(a) , however, provides a rider in registering information about the commission of offence under the impugned Act which is cognizable offence, by a police officer without the prior approval of the District Collector in Page 247 of 417 Downloaded on : Mon May 13 20:36:50 IST 2024 NEUTRAL CITATION C/SCA/2995/2021 CAV JUDGMENT DATED: 09/05/2024 undefined consultation with the Committee. The mandate of the Act' 2020 not to lodge the First Information Report without prior approval of the District Collector in consultation with the Committee is repugnant to Section 154 of the Code of Criminal Procedure. The Committee constituted under the Act cannot decide the fate of the information. The power conferred on the Committee to make inquiry under the Rules and to decide further course of action including filing of the First Information Report is adjudicatory.

188. As per the decision of the Apex Court in the case of Lalita Kumari v. State of Uttar Pradesh and others38 in the matter of lodging of the First Information Report of a cognizable offence, no preliminary inquiry can be conducted that too by a third agency like a District Level Committee. It was submitted that Land Grabbing Act' 2020 is substantively a penal law, providing for punishment of imprisonment. The procedure prescribed in the Code of Criminal Procedure is to be followed and no inquiry by a civil authority is permissible. The investigation at the pre- cognizance stage cannot be entrusted to the Executive Committee that too when the Special 38 [(2014) 2 SCC 1] Lalita Kumari v. State of Uttar Pradesh and others Page 248 of 417 Downloaded on : Mon May 13 20:36:50 IST 2024 NEUTRAL CITATION C/SCA/2995/2021 CAV JUDGMENT DATED: 09/05/2024 undefined Court after taking cognizance only can refer the matter to the Committee for inquiry.

189. It is further contended that the uncontrolled power has been given to the Collector in the matter of making inquiry under the Rule' 2020 and the language of Sub-rule (7) and Sub-rule (8) of Rule 5, providing the procedure for making inquiry giving power to the Committee to decide on the question of any act of Land Grabbing, the future course of action including filing an First Information Report after consideration of the inquiry report, are exceeding the provisions of the main enactment and they do not fall within the parameters within which a Rule framed under an enactment should work.

190. The further contention is that while making land grabbing an offence, mens rea is excluded by the fact that the "successor-in-interest or successor by inheritance" has also been included within the meaning of land grabber defined under Section 2(t) though they cannot have intention or knowledge of the wrong doing that constitutes part of the crime, as a course of the action or conduct of his predecessor. The basic principle of criminal Page 249 of 417 Downloaded on : Mon May 13 20:36:50 IST 2024 NEUTRAL CITATION C/SCA/2995/2021 CAV JUDGMENT DATED: 09/05/2024 undefined jurisprudence, an important component of criminal responsibility under the Indian Penal Code viz. the concept of mens rea, which is used to determine whether the person can be held responsible for a criminal act, is lacking when the successors in interest are also included within the meaning of land grabbing. Further the words used in Section 2(e) " with or without the use of force, threat, intimidation or deceit", to define the activity of land grabbing, by implication excludes mens rea, the definition of "land grabber" and "land grabbing" by Sections 2(d) and 2(e) do not differentiate between civil and criminal wrong.

191. The words used in Section 2(e) "without any lawful entitlement" are not clear. Because of the vagueness in the definition of "land grabbing" the Act becomes arbitrary. The constitution of the Act' 2020 and overriding effect given to Section 15 thereof further aggravates the situation. Reliance is placed on the decision of the Apex Court in the case of Union Of India vs M/S. Ganpati Dealcom Pvt. Ltd.39 to impress upon us that mens rea is an essential ingredient of a criminal offence.

[( 2023) 3 SCC 315] Union Of India vs M/S. Ganpati Dealcom Pvt. Ltd .

NEUTRAL CITATION C/SCA/2995/2021 CAV JUDGMENT DATED: 09/05/2024 undefined Mens rea by necessary implication may be excluded from a statute only when it is absolutely clear that the implementation of the object of the statute would otherwise be defeated. Mere fact that the object of the statue is to promote welfare activities or to eradicate grave social evil by itself is not decisive of the question as to whether the element of a guilty mind is excluded from the ingredients of an offence. It is a sound rule of construction to constitute statutory provision creating an offence in conformity with the common law rather than against it, unless the statute expressly or by necessary implication excluded mens rea, the standards of scrutiny on the criminal side and the burden on the prosecution would be higher. It, thus, logically follows that with the exclusion of mens rea in the impugned Act, the main ingredient of criminal offence, in the matter of land grabbing, would defeat the enactment itself, inasmuch as, without proving the guilty mind being the cause of offence, no person can be punished for commission of criminal offence. Mere possession of a land, to which occupier may not have right, title or interest by itself, cannot constitute a criminal offence, without attributing his Page 251 of 417 Downloaded on : Mon May 13 20:36:50 IST 2024 NEUTRAL CITATION C/SCA/2995/2021 CAV JUDGMENT DATED: 09/05/2024 undefined action to his guilty mind.

192. In response to the above noted submissions of Ms. Megha Jani and Mr. Virat Popat, learned advocates for the petitioners, it was urged by Mr. Kamal Trivedi learned Advocate General that:-

only. There cannot be any further sub- classification like "private land" and "Government land" and distinction between land grabber, on the basis of size of the land is impermissible. On the aforesaid grounds "the Land Grabbing Act' 2020" cannot be said to be violative of Article 14 of the Constitution of India, so long as the aforesaid broad classification "grabbed land" has nexus with the object, which is prohibition of land grabbing activities, sought to be achieved by the Act.

NEUTRAL CITATION C/SCA/2995/2021 CAV JUDGMENT DATED: 09/05/2024 undefined

193. With the aid of decisions of the Apex Court in the case of M/s. Prag Ice & Oil Mills and another vs. Union of India42 and in the case of Parivar Seva Sanstha vs. Ahmedabad Municipal Corporation43 , it was argued that even though the classification of "grabbed land" may be over-inclusive classification, while treating unequals and equals, it cannot be held discriminatory unless it is demonstrated that there is hostile discrimination. It was, thus, contended that the judgements relied by the learned counsels for the petitioners to assail the validity of the Act on the plea of discrimination, over-inclusive classification, by inclusion of both private land and Government land in one class of "grabbed land' are of no benefit.

194. Lastly, the decisions relied upon by Ms. Megha Jani to substantiate that the Act is unworkable, harsh, discriminatory and manifestly arbitrary have been sought to be distinguished with the assertion that the ratio of the said decisions are not attracted in the instant case.

[(1978) 3 SCC 459] M/s. Prag Ice & Oil Mills and another vs. Union of India 43 [2022 SC OnLine SC 1622] Parivar Seva Sanstha vs. Ahmedabad Municipal Corporation Page 254 of 417 Downloaded on : Mon May 13 20:36:50 IST 2024 NEUTRAL CITATION C/SCA/2995/2021 CAV JUDGMENT DATED: 09/05/2024 undefined (B) ANALYSIS

(a) General Principles of testing the Constitutionality of an Enactment

195. Dealing with the above contentions, we find it appropriate to first appreciate as to what should be the approach of the Court, while examining the challenge to the constitutionality of an enactment. The fundamental principle to be kept in mind is to start with the presumption of constitutionality. The Court should try to sustain the validity of a statute to the extent possible. It should strike down the enactment only when it is possible to sustain it. The Court should not approach the enactment with a view to pick holes or to search for defects of drafting, much less inexactitude of the language employed. Any such defect of drafting, if appears, a Judge should iron it out as part of the attempt to sustain the validity/constitutionality of the enactment. The reason being that the Act made by the Legislature represents the will of the people and that cannot be interfered with. Unconstitutionality must be plainly and clearly established before an enactment is declared as void. [Ref.: State of Bihar and Page 255 of 417 Downloaded on : Mon May 13 20:36:50 IST 2024 NEUTRAL CITATION C/SCA/2995/2021 CAV JUDGMENT DATED: 09/05/2024 undefined others vs Bihar Distillery Ltd and others44].

196. In the words of Lord Denning in Seaford Court Estates Ltd. v. Asher45], a purposive approach to the interpretation of a word used in a statute requires that:-

(emphasis supplied)

197. It is a well known rule of interpretation of statutes that the text and context of the entire Act must be looked into while interpreting any of the expressions used in a statute. The Courts must look to the object which the statute seeks to achieve while interpreting any of the provisions of the Act. A purposive approach for interpreting the Act is necessary. While dealing with the question of interpretation of statute, the Apex Court in the case of Reserve Bank of India v. Peerless General Finance and Investment Co. Ltd.46 observed in Paragraph No."13" as under:-

198. It is a well settled proposition of law of statutory interpretation that to save a statutory provision from the vice of unconstitutionality, extended interpretation of the statute has to be given. This is because it is a well settled principle of interpretation that the Court should make every effort to save a statute from being unconstitutional. If on giving one Page 257 of 417 Downloaded on : Mon May 13 20:36:50 IST 2024 NEUTRAL CITATION C/SCA/2995/2021 CAV JUDGMENT DATED: 09/05/2024 undefined interpretation a statute becomes unconstitutional and on another interpretation, it will be constitutional, then the Court should prefer the latter on the ground that the Legislature is not intended to have crossed its jurisdiction. Sometimes to uphold the constitutional validity, the statutory provision has to be read down [Ref:

199. In interpreting a statue the Court must adopt that construction which suppresses the mischief and advances the remedy. This is a rule laid down in Heydon's Case48 also known as rule of purposive construction or mischief rule [Ref: D. Vinod Shivappa vs Nanda Belliappa ]. The Court may not only take into consideration the purpose for which the statute was enacted, but also the mischief it seeks to suppress. It is this mischief rule, first propounded in Heydon's Case48 which became the historical source of purposive interpretation. The Court should avoid the construction which would reduce the legislation to futility and should accept the bolder construction based on the view that 47 48 M. Rathinaswami and others vs. State of Tamil Nadu and others [( 2009) 5 SCC 625] [(1584) 76 ER 637] Heydon 's Case Page 258 of 417 Downloaded on : Mon May 13 20:36:50 IST 2024 NEUTRAL CITATION C/SCA/2995/2021 CAV JUDGMENT DATED: 09/05/2024 undefined legislature would legislate only for the purpose of bringing about an effective result.

200. We may also take note of the wise words of Justice S. Mukherjee speaking for the Bench in the case of Atma Ram Mittal vs Ishwar Singh Punla49 as under:-

[(1988) 4 SCC 284] Atma Ram Mittal vs Ishwar Singh Punla Page 259 of 417 Downloaded on : Mon May 13 20:36:50 IST 2024 NEUTRAL CITATION C/SCA/2995/2021 CAV JUDGMENT DATED: 09/05/2024 undefined

(b) Analysing the Statement of Objects and Reasons of the Act' 2020

201. In light of the above, when we read the Statement of Objects and Reasons of the Land Grabbing Act' 2020, from the language employed therein, the social conditions which give rise to the enactment and of the mischief which it seeks to remedy, can be clearly discerned as we set to work on the constructive task of finding the intention of the Parliament, from the reading of the statute as a whole, section by section, clause by clause, phrase by phrase and word by word. Looking in the context of the enactment, it can be said that the Land Grabbing Act' 2020 seeks to remedy the mischief of certain unscrupulous persons, in occupying or attempt to occupy lands to which they have no right, title or interest or take possession without any lawful entitlement. Consideration of the social condition which gave rise to the impugned enactment are clearly narrated in the Statement of Objects and Reasons of the Land Grabbing Act' 2020 :-

202. We are conscious of the principle that the Statement of Objects and Reasons accompanying a Bill, cannot be used to determine the true meaning and effect of substantive provisions of the statute. They cannot be used except for limited purpose of understanding the background and the antecedent state of affairs Page 261 of 417 Downloaded on : Mon May 13 20:36:50 IST 2024 NEUTRAL CITATION C/SCA/2995/2021 CAV JUDGMENT DATED: 09/05/2024 undefined leading up to the legislation and for this reason only, for the limited purpose of understanding the reasons which induced the mover to introduce the Bill in the House and the object it sought to achieve, we have noted the Statement of Objects and Reasons of the Land Grabbing Act' 2020, hereinbefore. A reading of the same indicates that with a view to prohibit the activities of land grabbing, the State Government proposed to bring a law not only declaring the land grabbing unlawful, but to provide for penalty for offences in connection with land grabbing to effectively implement the Act. It is stated therein that it has come to the notice of the State Government that attempts were being made by certain lawless persons operating individually or in groups to grab lands belonging to the Government, local authority, religious or charitable institutions as well as private individuals, by setting up fictitious claims and indulging in large-scale and fraudulent sales of such lands through unscrupulous real estate dealers or otherwise.

203. The need felt by the State Government to bring a law to curb the illegal act of land grabbing is guided by the social conditions prevailing at the time of bringing the enactment.

NEUTRAL CITATION C/SCA/2995/2021 CAV JUDGMENT DATED: 09/05/2024 undefined

204. Understanding the Objects and Reasons of bringing the enactment, we shall now deal with the contentions of Ms. Megha Jani as noted herein-before, one by one.

(i) The first contention is that the Statement of Objects and Reasons of the Land Grabbing Act' 2020 shows that the Act is aimed at securing "public order", meaning thereby, the Legislature intended to make the land grabbing an offence only because it resulted into "disturbance of public order". However, while prohibiting the land grabbing and making it an offence under section 4(1) and (2) of the Land Grabbing Act' 2020, the distinction as was sought to be drawn by the legislature while bringing the Bill got blurred.

(ii) Secondly, private land and Government land are equated while making offence of land grabbing punishable in both categories. The main object of bringing the legislation, namely Land Grabbing Act' 2020 to maintain the public order by curbing the activities of land grabbing, has lost nexus with the impugned enactment. Two separate classes of lands are treated as equals without any rationale. Applying the mischief rules, it was argued that the mischief which the Act' 2020 seeks to Page 263 of 417 Downloaded on : Mon May 13 20:36:50 IST 2024 NEUTRAL CITATION C/SCA/2995/2021 CAV JUDGMENT DATED: 09/05/2024 undefined address is "disturbance of public order", the degree of which is higher than the disturbance caused by such activity which only amounts to "breach of law and order". By no stretch of imagination, the activity of any person or group of persons occupying private person's land can be said to have adversely affected the maintenance of the public order.

205. These submissions also noted in detail hereinbefore, are based on the reading of the Statement of Objects and Reasons of the Act' 2020 where it is stated that as public order is adversely affected by unlawful activities of land grabbers in the State, the State Government, with a view to prohibiting the activities of land grabbing and to provide for matters connected therewith, has proposed to bring the legislation.

206. To deal with the above contentions, suffice it to note that the Statement of Objects and Reasons appended to the Bill has been ruled out as an aid to the construction of the statute. The Statement of Objects and Reasons cannot be utilized for the purpose of reconstructing and controlling the plain meaning of the language employed by the legislature, in contravening a statute and Page 264 of 417 Downloaded on : Mon May 13 20:36:50 IST 2024 NEUTRAL CITATION C/SCA/2995/2021 CAV JUDGMENT DATED: 09/05/2024 undefined excluding from its portion, such transactions, which it plainly covers. The Statement of Objects and Reasons cannot be used for the purpose of construing any part of the enactment or of ascertaining the meaning of any word used in the Act. Reference to the Statement of Objects and Reasons is permissible, however, for understanding the background, the antecedent state of affairs, the surrounding circumstances in relation to the statute, and the evil which the statue sought to remedy. As noted hereinbefore, the Courts can, by ascertaining the legislative intent, place such construction on a statute as would advance its purpose and object. [Ref:

207. We would also like to note the observations of the Apex Court in the case of Aswini Kumar Ghose40 as under:-

208. In view of the above arguments of Ms. Megha Jani, the learned counsel for the petitioners based on the language of the Statement of Objects and Reasons of the statute to assail the validity or constitutionality of the statute, found to be devoid of substance. The contention that since the occupation of private land or any activity of the land grabbing relating to private land cannot amount to breach of public order, and making such activity a criminal offence by the impugned enactment is proof of manifest arbitrariness, is liable to be turned down.

(c) Dealing with the plea of violation of Article 14 by treating unequals as equals

209. Dealing with the contention that treating offenders against public land and private land Page 266 of 417 Downloaded on : Mon May 13 20:36:50 IST 2024 NEUTRAL CITATION C/SCA/2995/2021 CAV JUDGMENT DATED: 09/05/2024 undefined as equals makes the law palpably arbitrary, the discrimination alleged by the petitioners by treating unequals as equals, we may take note of the doctrine of equality before law guaranteed under Article 14 of the Constitution of India.

210. The essence of rule of law is to preclude arbitrary action. Equality before law is one of the features of the rule of law. The State in the exercise of its dominion power has to necessitate to make laws operating differently on different groups or classes of persons within its territory. To attend particular needs to giving effect to its policies, it must possess for that purpose large powers to distinguishing and classifying persons or things to be subjected to such laws. The principle underlining the guarantee of Article 14 is that all persons similarly circumstanced shall be treated alike both in privileges conferred and liabilities imposed. Equal laws would have to be applied to all in same situation, and there should be no discrimination between one person and another if as regards the subject matter of the legislation their position is substantially the same. The law can make and set apart the Page 267 of 417 Downloaded on : Mon May 13 20:36:50 IST 2024 NEUTRAL CITATION C/SCA/2995/2021 CAV JUDGMENT DATED: 09/05/2024 undefined classes, according to the needs and exigencies of the society and as suggested by experience. It can recognize even degree of evil, but the classification, should never be arbitrary, artificial or evasive.

211. To pass the test, two conditions must be fulfilled, namely (i) that the classification must be founded on a intelligible differentia which distinguishes those that are grouped together from others and (ii) that, differentia must have a rational relation to the object sought to be achieved by the Act. The differentia which is the basis of the classification and the object of the Act are distinct things and what is necessary is that there must be a nexus between them. The classification necessary implies making of distinction or discrimination between persons classified and those who are not members of that class. It is the essence of a classification that the class segregated are cast duties and burdens different from those resting upon the general public. Indeed, the very idea of classification is that of inequality, so that it goes without saying that the mere fact of inequality,in no manner, determines the matter of constitutionality.

NEUTRAL CITATION C/SCA/2995/2021 CAV JUDGMENT DATED: 09/05/2024 undefined

212. The underlying principle is that while Article 14 forbids class discrimination by conferring privileges or imposing liabilities upon person arbitrarily selected out of a large number of other persons similarly situated in relation to the privileges sought to be conferred or the liabilities proposed to be imposed, it does not forbid classification for the purpose of legislation, provided such classification is not arbitrary in the sense above mentioned. Classification is justified if it is not palpably arbitrary, and need not be constituted by exact or scientific exclusion or inclusion of persons or things. The Courts should not insist on delusive exactness or apply doctrinaire tests for determining the validity of classification in any given case. This principle propounded in the decision The Special Court Bill, 197852] and has been noted with the approval in Shashikant Laxman Kale37.

213. The contention of Ms. Megha Jani, learned counsel for the petitioners is that the same principles and the test would apply when two persons who are not members of the same class are treated as equals and brought under the umbrella of one law. The prohibition of "land grabbing" and making it an offence by the 52 [(1979) 2 S.C.R. 476] The Special Court Bill, 1978 Page 269 of 417 Downloaded on : Mon May 13 20:36:50 IST 2024 NEUTRAL CITATION C/SCA/2995/2021 CAV JUDGMENT DATED: 09/05/2024 undefined impugned Act' 2020 may have a rational with the object to curb the land grabbing activities of certain lawless persons in groups or unscrupulous real estate dealers, which are leading to adversely affect public order in the State, but bringing private disputes relating to title and ownership to, or lawful possession of any land by and between individuals, private persons, cannot have any nexus with the object, the Act' 2020 seeks to achieve.

214. It was urged that the activities of groups or individuals occupying the Government land may give rise to an adverse situation of public order but no such situation can be conceived when the allegations of land grabbing are for a small piece of land where the issues such as lawful title, bona fide purchases, regularization of occupation and compensation for eviction of persons with respect to the lands occupied by them would arise. Under the garb of prevention of land grabbing, such a sweeping provisions cannot be enacted which targets every resident of the State as a suspicious person. Under the impugned law, mere allegation of land grabbing is sufficient to invoke the jurisdiction of the Special Page 270 of 417 Downloaded on : Mon May 13 20:36:50 IST 2024 NEUTRAL CITATION C/SCA/2995/2021 CAV JUDGMENT DATED: 09/05/2024 undefined Courts. The successors-in-interest have been termed as land grabber by including them in the definition of land grabber under Section 2(d) of the Land Grabbing Act' 2020. The impugned law has a delirious effect on the people of the State occupying small piece of land for a long time irrespective of the value of the land and nature of the evil or gravity of the offence. The Act though aimed at addressing the mischief of "adverse effect on public order" or disturbance of public order by unlawful activities of land grabbers in the State", but brought everyone, even a private individual into the umbrella of the Act, causing burden upon him to prove his title and ownership or lawful possession of the occupied land, makes it arbitrary. The principles of manifest arbitrariness propounded by the Apex Court in Shayara Bano33 have been pressed into service to assert that the issue whether the law can be declared unconstitutional on the ground of arbitrariness has received therein.

215. The observations in paragraph Nos. '45' to '52' of the said decision has been read over to urge that the objects and reasons of Statute through law on the background in which the statute was enacted. While making inquiry Page 271 of 417 Downloaded on : Mon May 13 20:36:50 IST 2024 NEUTRAL CITATION C/SCA/2995/2021 CAV JUDGMENT DATED: 09/05/2024 undefined it should first be ascertained what the enacting part of Section provides on fair construction of words used according to their natural and ordinary meaning. On a fair construction of the Statement of Objects and Reasons, implying natural and ordinary meaning of the words used therein makes clear the intention of the Legislature that the statute was enacted essentially to maintain public order by curbing the land grabbing activity in the State.

216. To understand the historical development of the doctrine of arbitrariness and its application to State action, as a distinct doctrine, on which State action may be struck down as being violative of the rule of law contained in Article 14 , as noticed by the Rohinton Fali Nariman, J (as he then was) in Shayara Bano33, it would be expedient to reproduce paragraphs No.'67', '68', '69' and '101' as under:-

Though we have formulated the third ground of challenge as a distinct and separate ground, it is really in substance and effect merely an aspect of the second ground based on violation of Article 14 and 16. Article 16 embodies the fundamental guarantee that there shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State.

Though enacted as a distinct and independent fundamental right because of its great importance as a principle ensuring equality of opportunity in public employment which is so vital to the building up of the new classless egalitarian society envisaged in the Constitution, Article 16 is only an instance of the application of the concept of equality enshrined in Article 14. In other words, Article 14 is the genus while Article 16 is a species. Article 16 gives effect to the doctrine of equality in all matters relating to public employment. The basic principle which, therefore, informs both Articles 14 and 16 is equality and inhibition against discrimination. Now, what is the content and reach of this great equalising principle? It is a founding faith, to use the words of Bose. J., "a way of life", and it must not be subjected to a narrow pedantic or lexicographic approach. We cannot countenance any attempt to truncate its all-embracing scope and meaning, for to do so would be to violate its activist magnitude. Equality is a dynamic concept with many aspects and dimensions and it cannot be "cribbed, cabined and confined"

68. This was further fleshed out in Maneka Gandhi v. Union of India , (1978) 1 SCC 248, where, after stating that various fundamental rights must be read together and must overlap and fertilize each other, Bhagwati, J., Page 274 of 417 Downloaded on : Mon May 13 20:36:50 IST 2024 NEUTRAL CITATION C/SCA/2995/2021 CAV JUDGMENT DATED: 09/05/2024 undefined further amplified this doctrine as follows (at pages 283-284):

Article 14 strikes at arbitrariness in State action and ensures fairness and equality of treatment. The principle of reasonableness, which legally as well as philosophically, is Page 275 of 417 Downloaded on : Mon May 13 20:36:50 IST 2024 NEUTRAL CITATION C/SCA/2995/2021 CAV JUDGMENT DATED: 09/05/2024 undefined an essential element of equality or non- arbitrariness pervades Article 14 like a brooding omnipresence and the procedure contemplated by Article 21 must answer the test of reasonableness in order to be in conformity with Article 14. It must be "right and just and fair" and not arbitrary, fanciful or oppressive; otherwise, it would be no procedure at all and the requirement of Article 21 would not be satisfied."

[Emphasis Supplied]

69. This was further clarified in A.L. Kalra v. Project and Equipment Corpn. , (1984) 3 SCC 316, following Royappa (supra) and holding that arbitrariness is a doctrine distinct from discrimination. It was held:

Union of India [(1983) 1 SCC 305: 1983 SCC (L&S) 145: AIR 1983 SC 130: (1983) UPSC 263].

In Maneka Gandhi v. Union of India [(1978) 1 SCC 248: AIR 1978 SC 597: (1978) 2 SCR 621] it was observed that Article 14 strikes at arbitrariness in State action and ensures fairness and equality of treatment. It is thus too late in the day to contend that an executive action shown to be arbitrary is not either judicially reviewable or within the reach of Article 14." (at page 328) The same view was reiterated in Babita Prasad v. State of Bihar , (1993) Suppl. 3 SCC 268 at 285, at paragraph 31."

Constitution Bench of this Court in Indian Express Newspapers vs. Union of India , (1985) 1 SCC 641, stated that it was settled law that subordinate legislation can be challenged on any of the grounds available for challenge against plenary legislation. This being the case, there is no rational distinction between the two types of legislation when it comes to this ground of challenge under Article 14. The test of manifest arbitrariness, therefore, as laid down in the aforesaid judgments would apply to invalidate legislation as well as subordinate legislation under Article 14. Manifest arbitrariness, therefore, must be something done by the legislature capriciously, irrationally and/or without adequate determining principle. Also, when something is done which is excessive and disproportionate, such legislation would be manifestly arbitrary. We are, therefore, of the view that arbitrariness in the sense of manifest arbitrariness as pointed out by us Page 277 of 417 Downloaded on : Mon May 13 20:36:50 IST 2024 NEUTRAL CITATION C/SCA/2995/2021 CAV JUDGMENT DATED: 09/05/2024 undefined above would apply to negate legislation as well under Article 14.

The same view was reiterated in Babita Prasad vs.State of Bihar, 1993 Supp (3) SCC 268."

217. The Apex Court in Shayara Bano33 propounded that that the thread of reasonableness runs through the entire fundamental rights chapter. What is manifestly arbitrary is obviously unreasonable and being contrary to the rule of law, would violate Article 14. The arbitrariness doctrine contained in Article 14 would apply to negate legislation, subordinate legislation and executive action, which are from the principles propounded in the earlier decision of the Apex Court in the case of E. P. Royappa vs State Of Tamil Nadu & Anr 53, considered therein. It was observed in paragraph Nos.'87' as under:-

[Ref: Ajay Hasia vs. Khalid Mujib Sehravardi 54; Ramana Dayaram Shetty vs. International 55 Airport Authority of India ; Maneka Gandhi vs. Union of India56 ; Mohd. Arif vs. Supreme Court of India57]

218. Equality before law, guaranteed by the first part of Article 14 , is a negative concept, while the second part is positive concept. Article 14 frowns upon what constitutes hostile discrimination, but does not bar classification which is reasonable. To answer whether the classification is reasonable, one must look beyond the classification to the purpose of law. A reasonable classification is one which includes all persons, who are similarly situated with respect to the purpose of law. The purpose of law may be either elimination of public mischief or 54 [( 1981) 1 SCC 722] Ajay Hasia vs. Khalid Mujib Sehravardi 55 [( 1979) 3 SCC 489] Ramana Dayaram Shetty vs. International Airport Authority of India 56 [( 1983) 1 SCC 305] Maneka Gandhi vs. Union of India 57 [(2014) 9 SCC 737] Mohd. Arif vs. Supreme Court of India Page 279 of 417 Downloaded on : Mon May 13 20:36:50 IST 2024 NEUTRAL CITATION C/SCA/2995/2021 CAV JUDGMENT DATED: 09/05/2024 undefined achievement of some positive public good. In the case of Shashikant Laxman Kale37, the Apex Court has taken note of the decisions in P.M. Ashwathanarayana Setty & Ors. Etc. vs State Of Karnataka & Ors58; Federation Of Hotel & Restaurant Association of India vs. Union Of India & Ors59 , to note as under:-

11. This Court has held in Kerala Hotel and Restaurant Association & Ors. v. State of Kerala & Ors. [A.I.R. 1990 SC 913] as under:

(emphasis supplied)

219. In State Of Gujarat and Anr. vs Shri Ambica Mills Ltd., Ahmedabad60 , the Apex Court elucidated and explained the distinction between underinclusive and overinclusive classification. The classification is underinclusive when the State benefits or burdens persons in a manner that furthers the legitimate purpose but does not confer the same benefit or place the same burden on others who are similarly situated and classification is over-inclusive when it includes not only those who are similarly situated with respect to the purpose, but others who are not so situated as well. In other words, this type of classification imposes a burden upon a wider range of 60 [(1974) 4 SCC 656] The State Of Gujarat and Anr. vs Shri Ambica Mills Ltd., Ahmedabad Page 281 of 417 Downloaded on : Mon May 13 20:36:50 IST 2024 NEUTRAL CITATION C/SCA/2995/2021 CAV JUDGMENT DATED: 09/05/2024 undefined individuals that are included in the class of those attended with mischief at which the law aims. "Herod ordering the death of all male children born on a particular day because one of them would sonic day bring about his downfall employed such a classification".

220. While dealing with the question of the classification being underinclusive, it was noted therein that if the law presumably hits the evil where it is most felt, it is not to be overthrown because there are other instances to which it might have been applied. The legislature is free to recognize the degree of harm and it may confine the restrictions to those classes of cases where the need seemed to be clearest. Article 14 does not require every regulatory statute applied to all in the same business " where size is index to the evil at which the law is directed", discrimination between the large and the small are permissible, and it is also permissible for reform to take one step at a time, addressing itself to the phase of the problem which seems most acute to the legislative mind. The legislative authority acting within its field is not bound to extend its regulation to all classes which it might Page 282 of 417 Downloaded on : Mon May 13 20:36:50 IST 2024 NEUTRAL CITATION C/SCA/2995/2021 CAV JUDGMENT DATED: 09/05/2024 undefined possibly reach. The legislature is free to recognize the degree of harm and it may confine the restrictions to those classes of cases where the need seemed to be clearest. It is impossible to tell how successful a particular approach may be, what dislocation might occur, what evasions might develop and what new evils might be generated in the attempt.

221. The test is that there is a reasonable classification because it has a rational relationship to the object sought to be achieved. It is settled that mere assertion of transgression of equality doctrine enshrined in Article 14 cannot be a ground to hold a legislative enactment invalid. As held by the Apex Court in Shayara Bano33, the test of manifest arbitrariness is that there must be something done by the legislature capriciously, irrationally and/or without adequately determining the principle as also when something is done which is excessive and disproportionate, such legislation would be manifestly arbitrary.

222. The principle of arbitrariness in the sense of manifest arbitrariness which would apply to make a legislation invalid under Article 14 , Page 283 of 417 Downloaded on : Mon May 13 20:36:50 IST 2024 NEUTRAL CITATION C/SCA/2995/2021 CAV JUDGMENT DATED: 09/05/2024 undefined has to be applied to the case at hand to understand as to whether the impugned legislation suffers from vice of being excessive, disproportionate, capricious, irrational and without adequately determining the principle of law, as asserted by the learned counsel for the petitioners.

223. However, before doing so, we would like to refer to three decisions of the Apex Court pertaining to the interpretation of the provisions of the Andra Pradesh Land Grabbing (Prohibition) Act, 1982 (in short as "the A.P. Act").

(d) Taking aid of the decisions of the Apex Court pertaining to Andhra Pradesh Land Grabbing Act , 1982

224. We may note that in the decisions referred hereinafter, there were no challenge to the validity of the A.P. Act' 1982. However, the Apex Court has gone into the details of the construction and scope of various Sections of the A.P. Act, which are pari materia to The Gujarat Land Grabbing (Prohibition) Act, 2020 .

225. The first decision in this line is in the case of Konda Lakshmana Bapuji vs Government of Page 284 of 417 Downloaded on : Mon May 13 20:36:50 IST 2024 NEUTRAL CITATION C/SCA/2995/2021 CAV JUDGMENT DATED: 09/05/2024 undefined A.P. and others61, wherein the challenge was to the judgement of the High Court upholding the order of the Special Court in A.P. Act. Three questions were decided by the Special Court in a proceeding under the A.P. Act which were noted by the Apex Court in the aforesaid decision as under:-

226. The provisions of Sections 7 to 10 of the A.P. Act noted therein are pari materia pertaining to constitution of Special Courts, procedure and powers of Special Courts, Special Courts to have the powers of the Civil Court and the Court of Sessions, as also the burden of proof as contained in Sections 7 , 9(1) , 9(2) , 9(3) , 9(4) , 9(5) , 10 and 11 of the Gujarat Land Grabbing Act' 2020.

227. By reading of the provisions pertaining to the procedure and power of the Special Court therein under Section 8(1) of the A.P.Act, as 61 [(2002) 3 SCC 258] Konda Lakshmana Bapuji vs Government of A.P. Page 285 of 417 Downloaded on : Mon May 13 20:36:50 IST 2024 NEUTRAL CITATION C/SCA/2995/2021 CAV JUDGMENT DATED: 09/05/2024 undefined also Section 15 , which contained non-obstante clause giving overriding effect to the enactment in case of inconsistency therewith in any other law for the time being in force, or custom, usage or agreement or decree or order of a Court or any tribunal or authority, it was held by the Apex Court that:-

228. It was held that a Special Court is having all the trappings of a Civil Court and also a Criminal Court having powers of the Court of Sessions to which the provisions of the Code of Civil Procedure and the Code of Criminal Procedure apply. The Special Court can take cognizance of and try every case arising out of any alleged act of land grabbing or with respect to the ownership and title to, or lawful possession of, the land grabbed and determine the ownership, title to, or lawful possession of the land alleged to have been grabbed whose decision will be binding on all Page 286 of 417 Downloaded on : Mon May 13 20:36:50 IST 2024 NEUTRAL CITATION C/SCA/2995/2021 CAV JUDGMENT DATED: 09/05/2024 undefined the persons interested. Mere allegation of land grabbing is sufficient to invoke the jurisdiction of the Special Court either suo motu or on application by any person including any officer of authority. The meaning of "land grabbing" and "land grabber" which are pari materia to the Gujarat Land Grabbing (Prohibition) Act, 2020 were noted and discussed in Paragraph Nos. '28 to 39' as under:-

and also includes the successors in interest;

(e) "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 a 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 licences 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 terms "to grab land" shall be construed accordingly;

30. A perusal of clause (d) shows that the expression "land grabber" takes in its fold :

and (5) the successors in interest of such a person. Among these five categories, the first category is relevant for the present discussion -- a person or a group of persons who commits land grabbing.

31. Clause (e) of Section 2 , quoted above, defines the expression "land grabbing" to mean : (1) 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; (2) such grabbing must be : (i) without any lawful entitlement and (ii) with a view to : (a) illegally taking possession of such lands; or (b) to enter into or create illegal tenancies, lease and licences agreements or any other illegal agreements in respect of such lands; or (c) to construct unauthorised structures thereon for sale or hire; or (d) to give such lands to any person on (i) rental or (ii) lease and licence basis for construction, or (iii) use and occupation of unauthorised structures.

32. Inasmuch as the afore-mentioned expressions are defined employing the term "grabbing", it is necessary to ascertain the import of that term. It is not defined in the Act. It is not a technical term or a term of art so it has to be understood in its ordinary common meaning.

33. The meaning of the term "grab" in the New International Webster's Comprehensive Dictionary of the English Language, is given Page 289 of 417 Downloaded on : Mon May 13 20:36:50 IST 2024 NEUTRAL CITATION C/SCA/2995/2021 CAV JUDGMENT DATED: 09/05/2024 undefined as follows :

34.In Words and Phrases, permanent edition, Vol.18, the meaning of "grab" is noted as under :

35. Corpus Juris Secundum, Volume 38, records the meaning of the term "grab" thus :

36. In Concise Oxford Dictionary, the following meanings of the word "grab" are noted :

37. The various meanings, noted above, disclose that the term "grab" has a broad meaning - to take unauthorisedly, greedily or unfairly - and a narrow meaning of snatching forcibly or violently or by unscrupulous means. Having regard to the object of the Act and the various provisions employing that term we are of the view that the term "grab" is used in the Act in both its narrow as well as broad meanings. Thus understood the ingredients of the expression "land grabbing"

38. A combined reading of clauses (d) and (e) would suggest that to bring a person within the meaning of the expression "land grabber"

39. It must be borne in mind that for purposes of taking congnizance of a case under the Act existence of an allegation of any act of land grabbing is the sine qua non and not the truth or otherwise of such an allegation. But to hold that a person is a land grabber it is necessary to find that the allegations satisfying the requirements of land grabbing are proved."

229. It was then observed that for the purpose of taking cognizance of a case under the A.P. Act, the existence of an allegation of any act of land grabbing is sine quo non and not the truth or otherwise of such an allegation. But to hold that person is a land grabber, it is necessary to find that the allegations Page 292 of 417 Downloaded on : Mon May 13 20:36:50 IST 2024 NEUTRAL CITATION C/SCA/2995/2021 CAV JUDGMENT DATED: 09/05/2024 undefined satisfying the requirement of land grabbing are proved. To make out a case in civil proceeding that a person is a land grabber, the person who made a complaint himself aver and prove both the ingredients : the factum as well as the intention, that the person termed as "land grabber" has occupied the land in dispute, which belonged to the complainant, without any lawful entitlement and, with a view to or with the intention of illegally taking possession of the said land or enter into the land for any of the purposes mentioned in Section 2(e) of the A.P.Act, which defined "land grabbing" and is pari materia to Section 2(e) of the Gujarat Land Grabbing Act' 2020. It was held that in regard to the ingredients of the expression " the land grabber", it is necessary to point out that it is only when a person has lawful entitlement to the land alleged to be grabbed that he cannot be brought within the mischief of the said expression. A mere prima facie bona fide claim to the land alleged to be grabbed by such a person, cannot avert being roped in within the ambit of expression "land grabber". What is germane is lawful entitlement to and not a mere prima facie bona fide claim to the land alleged to be grabbed.

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230. In the second decision in M/S Mahalaxmi Motors Ltd vs Mandal Revenue Officer & Ors62 , the question arose as to whether the Special Court has jurisdiction to decide the questions relating to title and possession. Considering the above noted decision in Konda Laxmana Bapuji61, it was observed therein that lawful entitlement on the part of a party to possess the land being the determinative factor, it is axiomatic that so long as the land grabber would not be able 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, in view of the decision of the Apex Court in Konda Laxmana Bapuji61 .

231. In the third decision in the case of Industrial Investment Bank Of India Ltd vs Bishwanath Jhunjhunwala63 , the question referred to the larger Bench (three Judges Bench) of the Apex Court was whether the Special Court created under the A.P. Act would have jurisdiction to deal with the question of adverse possession. Taking note of the 62 [2007 ( 11) SCC 714] M/S Mahalaxmi Motors Ltd vs Mandal Revenue Officer & Ors 63 [2009(5) SCC 478] Industrial Investment Bank Of India Ltd vs Bishwanath Jhunjhunwala Page 294 of 417 Downloaded on : Mon May 13 20:36:50 IST 2024 NEUTRAL CITATION C/SCA/2995/2021 CAV JUDGMENT DATED: 09/05/2024 undefined provisions of the A.P. Act, it was held by the Apex Court that the Act undisputedly confers a wide jurisdiction upon the Special Court and the Special Tribunal. For all intent and purport, the Tribunals and the Special Courts are substitutes for Civil Court and the 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 object being to prohibit the land grabbing" resulting in breakage of public law and order. 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. It aims at those persons, who form a distinct class. The Special Courts have both civil and criminal jurisdiction. The provisions of the Code of Civil Procedure and Code of Criminal Procedure are ordinarily applicable, subject of course to the provisions to the contrary. A legal fiction is created that it would be Civil Court and/or the Court of Sessions and would otherwise have the same power as the Civil Court or the Court of Sessions as provided in the Code of Civil Procedure and the Code of Criminal Procedure .

232. It was, thus, held that the Special Courts and Page 295 of 417 Downloaded on : Mon May 13 20:36:50 IST 2024 NEUTRAL CITATION C/SCA/2995/2021 CAV JUDGMENT DATED: 09/05/2024 undefined the Tribunal, undisputedly are entitled to determine any question or issue including the question of title or possession in the proceedings initiated before it, inasmuch as, they not only have trappings of a Court but virtually are Civil Courts and, thus, are entitled to determine complicated questions of title. There was, thus, no reason that the question of adverse possession be kept beyond the purview of its jurisdiction.

233. It was, thus, held that the acquisition of indefeasible title by prescription is creation of a statute. Section 27 of the Limitation Act provides for extension of title of the owner of the land and vesting thereof in a person who has acquired the same by adverse possession. The plea of adverse possession, however, must expressly be raised and established. If it is a Civil Court, all questions relating to title and possession can be gone into, if and when the proceeding is initiated under the A.P. Act. The opposite party not only can raise jurisdictional question but can also raise the questions relating to his title and possession. It is observed that it is difficult to comprehend as to how the Special Court would be debarred Page 296 of 417 Downloaded on : Mon May 13 20:36:50 IST 2024 NEUTRAL CITATION C/SCA/2995/2021 CAV JUDGMENT DATED: 09/05/2024 undefined from determining the questions raised by the parties thereto.

(C) Conclusion :-

Reverting to the Land Grabbing Act, 2020 :-

234. Taking clue from the above observations of the Apex Court referring to the pari materia provisions of the A.P.Act, when we look to the provisions of the impugned enactment, we find that the impugned enactment has been brought to remedy the mischief of land grabbing. The activity of grabbing of any land (whether belonging to the Government, local authority, a religious or charitable institution or endowment or any private person) by a person or group of persons, such grabbing must be :

235. The meaning of the expression "land grabber"

236. The expression "land grabber" and "land grabbing" have been defined in a very broad sense by giving a wide meaning to umbrage all such persons, who commit, financiers and abettors within the ambit of "land grabber"

237. When the Statement of Objects and Reasons of the Act are read conjointly with the various Sections of the Gujarat Land Grabbing (Prohibition) Act, 2020 , it is evident that the legislature had conceived of only one class of lands, which is "grabbed lands" and the offence or mischief which the law aims to remedy is "grabbing of lands in the State". The term "grabbing" includes all types of activities, whereby a person takes possession of land, forcibly, dishonestly, violently, unauthorizedly or by unscrupulous means. It is, therefore, difficult to comprehend as to how persons, who commit offence of land grabbing in relation to the lands belonging to a private persons would fall in a separate class, when they entered into private person's property to take possession or deal with the Page 299 of 417 Downloaded on : Mon May 13 20:36:50 IST 2024 NEUTRAL CITATION C/SCA/2995/2021 CAV JUDGMENT DATED: 09/05/2024 undefined same by creating unauthorized tenancies etc, they would otherwise be a land grabber. The ingredients of land grabbing, noted above, of occupying or attempt to occupy a private person's property having no ownership, title or physical possession, without any lawful entitlement, would all be present even in a case of activity to occupy or attempt to occupy a private person's property. It is axiomatic that so long as the land grabber occupies private property, he would be forming a different class or would be excluded from the purview of the Act, the main object of which is to prohibit the unlawful activities of land grabbing in the State. The question in regard to lawful entitlement of the occupier, therefore, for invoking the charging section plays an important and significant role. The petitioners have failed to show that "any activity of land grabbing" in relation to any land belonging to a private person, falls in a separate class and the occupant or the offenders cannot be included within the meaning of "land grabber" under the Act' 2020.

238. As far as the plea of the petitioners that various issues pertaining to lawful title, bona fide purchases, adverse possession, Page 300 of 417 Downloaded on : Mon May 13 20:36:50 IST 2024 NEUTRAL CITATION C/SCA/2995/2021 CAV JUDGMENT DATED: 09/05/2024 undefined regularization of long occupation of Government land, would arise in a complaint of land grabbing pertaining to the land belonging to a private person, suffice it to say that the Special Courts constituted under the Act have been provided with the powers of Civil Court for trying civil proceedings and a Court of Sessions for conducting criminal trial. The provisions of the Code of Civil Procedure and Code of Criminal Procedure are applicable in the proceedings, if not inconsistent with the provisions of the Act.

239. The Civil Court's jurisdiction is ousted and the Act' 2020, which is a special law would prevail and, as such, the Special Courts only have jurisdiction in respect of the matter dealt with thereunder. The Special Courts have been conferred with the power to try every case arising out of any alleged act of land grabbing, as also for determination of acquisition of title and ownership to or lawful possession of the land alleged to have been grabbed. It is equipped with the power to pass such orders including interim orders as it deems fit. The Courts under the Act are nonetheless Civil Courts which follow the Code of Civil Procedure and are competent to grant Page 301 of 417 Downloaded on : Mon May 13 20:36:50 IST 2024 NEUTRAL CITATION C/SCA/2995/2021 CAV JUDGMENT DATED: 09/05/2024 undefined the same relief which can be obtained from ordinary Civil Courts. At the cost of repetition, it may be noted that the conjoint reading of Section 9(2) and Section 15 of the Land Grabbing Act' 2020 which contain non- obstante clause lead to the conclusion that the jurisdiction of the ordinary Civil Court under Section 9 of the Code of Civil Procedure is ousted and the Act, which is a special law will prevail and, as such, the Special Court will have jurisdiction in respect of the matters dealt with thereunder.

240. As noted by the Apex Court in Konda Laxmana Bapuji61, the Land Grabbing Act' 2020 is designed by the Legislature to obviate the difficulty of duplication of trial once in the Special Court under the Act' 2020 and over again in the ordinary Civil Court. The purpose of the Act is to identify cases involving allegation of land grabbing for speedy inquiry and trial. It is one thing to say that Special Courts are not competent to adjudicate the civil or criminal dispute pertaining to allegations of land grabbing, but it is another thing to say that though Special Court are equipped with the power of Civil Court and the Court of Sessions, relegating the dispute Page 302 of 417 Downloaded on : Mon May 13 20:36:50 IST 2024 NEUTRAL CITATION C/SCA/2995/2021 CAV JUDGMENT DATED: 09/05/2024 undefined pertaining to allegations of land grabbing would cause prejudice to a particular class of persons, who can otherwise be termed as land grabber.

241. The right to possess the land must be referable to the title or lawful entitlement of the land and not to mere entitlement to occupy the same. The mere allegations of the land grabbing would be sufficient for the purposes to taking cognizance of a case under the impugned enactment, however, to hold the person as a land grabber, it is necessary to prove the allegations by satisfying the requirement of land grabbing. In the same manner, a person who has lawful entitlement to the land, if alleged to be a land grabber, cannot be roped in within the ambit of the expression "land grabber". What is germane is lawful entitlement to and not a mere prima facie bona fide claim to the land alleged to be grabbed. Only if the ingredients of the expression "land grabber" are fulfilled, the person against whom allegations of land grabbing are made can be held to be guilty of the offence of land grabbing.

242. The questions as to bona fide purchase of the property for valuable consideration, right of Page 303 of 417 Downloaded on : Mon May 13 20:36:50 IST 2024 NEUTRAL CITATION C/SCA/2995/2021 CAV JUDGMENT DATED: 09/05/2024 undefined regularization for long uninterrupted occupation of Government land, perfecting the title by way of adverse possession can very well be gone into and decided by the Special Courts on the oral and documentary evidences led by the parties. The person against whom the allegations of land grabbing are made has to establish his rival claim of having lawful entitlement to the land/property in question for determination of such issues. The Special Court will be entitled to take into consideration the rival claims of the parties by framing appropriate issues.

(b) Reverse burden :-

243. Coming to the provisions of Section 11 , about burden of proof, a plain reading of this Section would indicate that in any proceeding under Act' 2020; (i) whether the land is alleged to have been grabbed; and (ii) such land is prima facie proved to be the land owned by the Government or by a private person, the Special Court shall draw presumption that the person against whom allegations are of "land grabbing", is a "land grabber". Only when such presumption under Section 11 is drawn by the Special Court, the burden of proving that the land has not been Page 304 of 417 Downloaded on : Mon May 13 20:36:50 IST 2024 NEUTRAL CITATION C/SCA/2995/2021 CAV JUDGMENT DATED: 09/05/2024 undefined grabbed by him is cast on the person alleged as "land grabber".

244. We may take note of Section 106 of the Indian Evidence Act 1872, which says that when any fact is especially within the knowledge of any person,the burden of proving that fact is upon him. In a criminal trial, burden is always on the prosecution to prove the guilt of the accused beyond reasonable doubt and it is settled law that Section 106 of the Indian Evidence Act is not intended to relieve the prosecution of its burden. Only when the prosecution proves certain facts from which reasonable inference can be drawn regarding certain other facts, which unless explained by the accused by virtue of his special knowledge, tend to inculpate the accused, in such circumstance, the accused owe an explanation, otherwise Section 106 does not cast any burden on the accused to prove his innocence. This reverse burden drawn by Section 106 is not a substitute for the burden of proof that rests upon the prosecution, in a criminal trial.

245. When we read Section 11 of the Land Grabbing Act in light of the above provision, it can be seen that prima facie proof of the land which Page 305 of 417 Downloaded on : Mon May 13 20:36:50 IST 2024 NEUTRAL CITATION C/SCA/2995/2021 CAV JUDGMENT DATED: 09/05/2024 undefined is alleged to have been grabbed, to be owned by the Government or any private person other than the person, who is occupying or dealt with the land, is to be brought by the prosecution, to enable the Special Court to draw a presumption that the person, who is alleged to have grabbed the land, is a land grabber. Only when from the facts proved by the prosecution, a reasonable inference can be drawn with regard to the ownership of the grabbed land rests with a person other than the person who is alleged to be a land grabber, the burden would shift on the alleged land grabber to prove his lawful entitlement to the grabbed land. In such circumstance, the accused owe an explanation as the fact that the land belonged to some other person proved by the prosecution tend to inculpate the accused. The accused or the person against whom allegations of land grabbing has been made, cannot remain silent in such circumstances as onus to speak to prove his lawful entitlement to the land in question. shifted on him. This is more so as the fact about the right, title or interest in the land is in special knowledge of the person who is in occupation or who attempts to occupy the same.

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246. The provision of Section 11 of the Land Grabbing Act, thus, are in conformity with the law of evidence, which would guide the Special Courts in both, in the civil and criminal proceedings. The contention of the learned counsels for the petitioners to show arbitrariness in the impugned enactment by making submissions about Section 11 being against the principle of presumption of innocence of the accused under the criminal jurisprudence, is liable to be turned down. The assertion that making the activity of land grabbing an offence both against the private land and Government land by itself would prove arbitrariness in the statutory provision cannot be justified as the petitioners failed to demonstrate any hostile discrimination.

247. The discussion on Section 15 in the foregoing paragraphs of this judgment is sufficient to deal with the arguments of the learned counsel for the petitioners to show arbitrariness in the impugned enactment on the premise that it tends to supersede judicial verdict or nullifies the decree or order in the Courts of law. There is no substance in the submissions of the learned counsels for the petitioners about the overriding effect on Section 15 . The Page 307 of 417 Downloaded on : Mon May 13 20:36:50 IST 2024 NEUTRAL CITATION C/SCA/2995/2021 CAV JUDGMENT DATED: 09/05/2024 undefined assertion that several provisions of the Act are violative of Article 14 being hit by equality doctrine, contrary to rule of law making the Act' 2020 unconstitutional are found to be devoid of force on an exhaustive analysis of the above noted provisions of the impugned enactment.

248. There are two more contentions of the petitioners to emphasize on the plea of manifest arbitrariness which are pertaining to the provisions contained in Sections 7 and 9(5) , which are to be dealt with before drawing the final conclusion on the issues raised by Ms. Megha Jani, learned counsel for the petitioners.

(c) Section 7(2) - Dispute re : Jurisdiction of Special Courts :-

249. By reading Section 7(2) of the Act, it was contended by Ms. Megha Jani that the said provision strikes at the basic structure of the Constitution of India as it blurs the principle of separation of power between the legislature and the judiciary.

250. The contention is that Section 7(2) confers power on the State Government to decide the question of jurisdiction of any Special Court, Page 308 of 417 Downloaded on : Mon May 13 20:36:50 IST 2024 NEUTRAL CITATION C/SCA/2995/2021 CAV JUDGMENT DATED: 09/05/2024 undefined if arises and it also attaches finality to the decision of the State Government. Whereas the question of jurisdiction of any Court essentially is a question which requires adjudication by the said Court. The contention, thus, is that Section 7(2) itself makes the entire enactment manifestly arbitrary.

251. To deal with this submission, suffice it to say that the contentions of the learned advocate are a result of misreading and misinterpretation of Section 7(2) , which only talks of any question relating to constitution of Special Courts for conferring jurisdiction upon them for Special area or areas, or for such cases or class or group of cases, as may be specified in the Notification. The effective meaning which is to be given to Section 7(2) is that in case any question arise with regard to the jurisdiction of any Special Court, as specified in the Notification, about its establishment for a particular area or areas for cases or class, a group of cases etc, the said question is to be referred to the State Government, as creation of Special Court for a particular area or cases or class of persons is within the Page 309 of 417 Downloaded on : Mon May 13 20:36:50 IST 2024 NEUTRAL CITATION C/SCA/2995/2021 CAV JUDGMENT DATED: 09/05/2024 undefined competence of the State Government. The words "question as to the jurisdiction of any Special Court" cannot be confused with the question of jurisdiction to take cognizance of any complaint or try any case arising out of any alleged act of land grabbing, either suo motu or on an application made by any person, i.e. to take suo motu cognizance or entertain any application beyond the jurisdiction of the Special Court constituted under Section 7 under the notification issued by the State Government. There cannot be any quarrel about the proposition that once the Special Courts are constituted by notification under Section 7(1) of the Act, their jurisdiction is confined to the territorial area as notified by the State Government and any question pertaining to jurisdiction of the Special Court to initiate suo motu action or entertain a complaint, raised by the party against whom action is taken or complaint is entertained, has to be decided invariably by the Special Court only. To initiate action either suo motu or on complaint, the Special Court has to satisfy itself about its jurisdiction first, before proceeding to decide on the merits of the complaint or its own action against any other person.

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(d) Section 9 of the Act' 2020 - unguided and unbridled power to Special Courts :-

252. Coming to the submissions with regard to the provisions of Section 9(5) of the Act' 2020, extracted hereinbefore, dealing with the arguments of the learned counsel for the petitioners, about the unbridled, unguided power given to the Presiding Judge manning the Special Courts, suffice it to note that it is well settled that in a given case, civil proceedings and criminal proceedings can go simultaneously.

253. On the issue of continuance of criminal proceedings arising out of Section 476-B of the Criminal Procedure Code, a Constitution Bench of the Apex Court in M. S. Sheriff vs the State Of Madras64 has held that there cannot be any hard and fast rule as to which of the two proceedings should be given precedence. However, the assertion with regard to the possibility of conflicting decisions in the Civil and Criminal Codes has been ruled out, while noting that the law envisages such an eventuality when it expressly refrains from making a decision of one court binding on the other or even 64 [AIR 1954 SC 397] M.S. Sheriff vs the State Of Madras Page 311 of 417 Downloaded on : Mon May 13 20:36:50 IST 2024 NEUTRAL CITATION C/SCA/2995/2021 CAV JUDGMENT DATED: 09/05/2024 undefined relevant, except for certain limited purposes, such as sentence or damages.

254. It is further pertinent to note that the standard of proof required in the two proceedings are entirely different. The civil cases are decided on appreciation of evidence on the principles of preponderance of probability, while in a criminal case, the burden lies on the prosecution to prove the guilt beyond reasonable doubt. There is neither any statutory provision nor any legal principle that the findings recorded in one proceeding may be treated as final or binding in the other, as both the cases have to be decided on the basis of the evidence adduced therein. The possible conflict of findings between the civil and criminal proceedings by the Special Court, therefore, is simply hypothetical. The discretion given to the Special Court to decide the order in which the civil and criminal liability against the land grabber be initiated, seems to be in conformity with the principle that it has to be left to the wisdom of the Court to decide as to which of the proceedings should go first, depending upon the facts of a particular case.

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255. However, to elaborate further, as noted above, the main object of the impugned enactment is to protect the owner and possessor of the land having right, title and interest in the land, from a person who unauthorisedly occupied his land, by holding him a land grabber and award punishment for the criminal offence. In such proceedings, mere allegations of land grabbing though would be sufficient to initiate action, but the Special Court may be called upon to determine the complicated questions of title. It is to be established by the complainant that he is the owner having absolute title to the property and has right to retain the possession, and on a rival claim in defence, of a better title or interest over the property, the Special Court will be entitled to take into consideration the evidence of the parties to adjudicate on the issue.

256. Thus, in a proceeding before the Special Court, either on taking suo motu cognizance or on a complaint, if the alleged land grabber claims or puts up a defence of proprietary right or ownership or possessory right over the land in question, then the civil proceedings will have to be proceeded first. The reason being that without adjudicating on Page 313 of 417 Downloaded on : Mon May 13 20:36:50 IST 2024 NEUTRAL CITATION C/SCA/2995/2021 CAV JUDGMENT DATED: 09/05/2024 undefined the question of rival claims, no definite finding can be arrived at about the right of the claimant to seek restoration of possession of the land, which according to him has been grabbed by the person against whom proceeding has been initiated as a 'land grabber', and if the alleged land grabber fails to establish any such right claimed by him, then criminal proceedings for prosecution of the land grabber would recommence.

257. Thus, if in the proceedings under the Act' 2020, the alleged land grabber takes up the defence of better title or better claim over the land in question, the Special Court shall first determine that question and keep the criminal trial in abeyance till such determination. However, it is to be kept in mind that in the civil proceeding, the adjudication shall be of the rival claims of the parties, if any, put up in defence by the land grabber. This is so because the alleged land grabber had not approached the Court for declaration of his right, title, interest or possession over the land in question; it is only when he is prosecuted as a land grabber, that he takes up the plea of better claim over the land in question as his defence. The Page 314 of 417 Downloaded on : Mon May 13 20:36:50 IST 2024 NEUTRAL CITATION C/SCA/2995/2021 CAV JUDGMENT DATED: 09/05/2024 undefined question of determination of civil liability under Section 9(3) in a case where the land grabber has not been able to put up a better title or claim in defence, has to be of summary nature and cannot partake the character of a full-fledged civil suit, which is ordinarily a long drawn affair, thereby frustrating the very purport and object of the Act' 2020.

258. It is for this reason, to our mind, Section 9(3) prescribes that the Special Court may follow its own procedure which shall be guided by the principles of natural justice and fair play while deciding the civil liability, which of course be subject to the other provisions of the Act and the Rules made thereunder.

259. The essence is that if there is no defence to claim a better title, there would not be a requirement of full-fledged civil trial as Special Courts are specially created to adjudicate on the complaints of land grabbing. If no defence or claim is put up by the person alleged to be a land grabber, the criminal proceedings be continued and the proceedings for determination of civil liability as per Section 9(3) would be of summary nature, which Page 315 of 417 Downloaded on : Mon May 13 20:36:50 IST 2024 NEUTRAL CITATION C/SCA/2995/2021 CAV JUDGMENT DATED: 09/05/2024 undefined may be conducted simultaneously.

260. From a further reading of section 9(2) of the Act' 2022, it is clear that all incidental or ancillary issues pertaining to the right, title, interest or possession in respect of the alleged act of land grabbing, have to be adjudicated to arrive at the conclusion of the occupied land being a "grabbed land" within the meaning of Section 2(e) of the Act' 2020 in civil proceedings. The question whether the person against whom the allegations are made had indulged in land grabbing or is to be held guilty of the offence of land grabbing would be subject matter of criminal proceedings.

261. In this view of the matter, the leverage given by the Legislature to the Special Court which are well equipped with the powers of the Civil Court and the Court of Sessions, being well versed with the procedure under the Code of Civil Procedure and Criminal Procedure Code , well informed with the law of evidence, cannot be said to be unguided or unbridled. The procedure prescribed in Section 9(5) read with Sub-section (1) to (4) of Section 9 and Section 10 of the Land Grabbing Act cannot be said to be suffering from manifest Page 316 of 417 Downloaded on : Mon May 13 20:36:50 IST 2024 NEUTRAL CITATION C/SCA/2995/2021 CAV JUDGMENT DATED: 09/05/2024 undefined arbitrariness, as against the concept of Article 14. The criminal culpability of the accused would have to be adjudicated guided by the principles of criminal jurisprudence. It cannot be said that he is being condemned unheard.

262. From the Scheme of the Act' 2020 employed in Sections 9 , 10 and 11 , it is evident that Special Courts are created to expedite the trial of the complaint of land grabbing, to conduct in a time bound manner by satisfying substantive due process of law and to obviate delay, which marr the civil proceedings in ordinary Civil Court so as to restore the grabbed land to its original owner by eviction of unauthorised and unscrupulous person having entered into his property.

263. On the plea of vagueness of statute, nothing could be demonstrated before us. We may add that when the jurisdiction is conferred on the regular Courts dealing with both civil and criminal matters, as Civil Courts and Court of Sessions, they are expected to be well versed with both the substantive as well as the procedural laws. They are expected to follow the procedure and take decisions guided by the settled principles of law and justice. The Page 317 of 417 Downloaded on : Mon May 13 20:36:50 IST 2024 NEUTRAL CITATION C/SCA/2995/2021 CAV JUDGMENT DATED: 09/05/2024 undefined apprehension of the petitioners that the discretion given to the Special Court to fix priority to civil or criminal proceedings is prone to misuse, is absolutely unfounded.

264. The reliance placed on the decision of the Apex Court in Shreya Singhal vs. Union of India65 , to impress upon us that the entire Land Grabbing Act' 2020 is to be held to be invalid, unconstitutional, being vague, is wholly misplaced. The possibility of abuse of power is not a reason to hold the Legislative enactment invalid or unconstitutional. Moreover, checks and balances are provided in the statute in the shape of appeal to the High Court under Section 12A against the final judgment and order of the Special Court, both against the order passed in the civil or criminal proceeding. The High Court can also exercise supervisory jurisdiction under Article 227 of the Constitution of India, in case of any excesses or defect of jurisdiction.

265. The procedure to conduct both civil and criminal proceedings is guided by Civil and Criminal Procedure Code . Rules of evidence as per the Evidence Act, 1872 are applicable to 65 [2015 (5) SCC 1] Shreya Singhal vs. Union of India Page 318 of 417 Downloaded on : Mon May 13 20:36:50 IST 2024 NEUTRAL CITATION C/SCA/2995/2021 CAV JUDGMENT DATED: 09/05/2024 undefined appreciate evidence in both the proceedings. Full-fledged trial is conceived to adjudicate dispute, claims and in case of no dispute about the title, criminal proceedings have to be conducted following the principles of criminal jurisprudence. The land grabbing though has been made a criminal offence, but it may involve issues of civil nature pertaining to ownership, title and possession. Criminal proceedings would involve inquiry on the question of mens rea in view of the words "with a view to illegally taking possession of such land or creating illegal tenancies" etc. used to define the words "land grabbing" under Section 2(e) .

266. There is, thus, no reason not to keep the process flexible for the Special Court to decide its course of action in the facts of a given case. However, it is open for the Special Court to conduct both Civil and Criminal proceedings simultaneously, if the situation demands. In any case, there is no question of the Special Court being influenced from the evidence of one or other proceeding as the principles of appreciation of evidence in both the proceedings defer.

267. With the above discussion, the arguments on Page 319 of 417 Downloaded on : Mon May 13 20:36:50 IST 2024 NEUTRAL CITATION C/SCA/2995/2021 CAV JUDGMENT DATED: 09/05/2024 undefined the vagueness of the provisions pertaining to the procedure and power of the Special Courts to try Civil and Criminal proceedings simultaneously or one after the other, are liable to be turned down.

(e) Section 12(a) - re: Constitution of the Committee :-

268. Moving further on the issue of constitution of the Committee and the procedure prescribed in the Rules' 2020 framed under the Act, we do not find any fault in Section 12(a) , which talks of the 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. The contention of the petitioners that the Committee has been conferred adjudicatory power to decide on the complaint, is a result of misreading of the Act' 2020 and the Rules' 2020 made thereunder. The contention that Rule 5(8) of the Land Grabbing Rules' 2020 while conferring jurisdiction on the Committee to decide the further course of action including filing of an FIR, goes beyond the provisions of Section 12(a) , is wholly misconceived. All the arguments pertaining to Page 320 of 417 Downloaded on : Mon May 13 20:36:50 IST 2024 NEUTRAL CITATION C/SCA/2995/2021 CAV JUDGMENT DATED: 09/05/2024 undefined the power of the State Government to constitute a Committee and the power of inquiry conferred upon the Committee by virtue of Rules' 2020 framed under the Act are without substance.

269. Suffice it to note that the composition of the Committee is prescribed in Section 2(a) of the Act' 2020, which says that that the Committee shall be notified by the State Government under the chairmanship of the District Collector. The Committee defined under Section 2(a) means an Executive Committee wherein officers of the State other than the District Magistrate/Collector are to be inducted. It is neither possible for the Legislature nor advisable to provide the full constitution of the Committee by prescribing as to who would be its members, inasmuch as, functions of the Committee are purely executive. Looking to the varied nature of complaints that have arisen in the matter of land grabbing in this bunch of writ petitions and otherwise also, we find that it should be left within the exclusive domain of the State Government to decide as to which executive officer of the concerned Department would have to be inducted as a member in the Committee to Page 321 of 417 Downloaded on : Mon May 13 20:36:50 IST 2024 NEUTRAL CITATION C/SCA/2995/2021 CAV JUDGMENT DATED: 09/05/2024 undefined make inquiry.

(f) Rule 5 of Rules' 2020 - re: Procedure of inquiry into the complaints :-

270. Coming to Rule 5 of the Gujarat Land Grabbing (Prohibition) Rules, 2020 enacted in exercise of the power conferred by Sub-section (1) of Section 16 of the Act' 2020, we may note that Rule 5(4) provides for a prima facie inquiry into the complaint of land grabbing. The Committee has been entrusted with the task to make a prima facie inquiry into the locus standi of the applicant and to conclude as to whether the applicant can establish his land title, by getting reports and records from various authorities. A preliminary inquiry as per Rule 5(5) is to be conducted by the Prant officer or the Officer to whom the application has been referred to, whether the land in question has been occupied or attempted to occupy in an unauthorised manner or by using unlawful means. The preliminary inquiry report is to be submitted to the District Collector, which shall be placed before the Committee, which is also empowered to ask for further inquiry.

271. Rule 5 prescribes the manner in which the inquiry is to be conducted and the statement Page 322 of 417 Downloaded on : Mon May 13 20:36:50 IST 2024 NEUTRAL CITATION C/SCA/2995/2021 CAV JUDGMENT DATED: 09/05/2024 undefined therein shows that the Committee may derive a conclusion of establishment of land title of the complainant or the occupation of the land grabber being unauthorised constituting an act of land grabbing, but all the conclusions are in a preliminary inquiry directed towards the veracity and genuineness of the complaint or allegations of land grabbing.

272. Looking to the gravity of the punishment prescribed under the Act for the proven act of land grabbing, the checks provided at the preliminary stage are aimed to curb frivolous complaints of land grabbing, and, as such, cannot be said to suffer from vice of constitutionality.

273. The decision or the opinion drawn by the Committee as per Rule 5(8) on consideration of the inquiry report, in any case, is prima facie and is provided as the check to curb frivolous complaints of land grabbing. There is no substance in the submission that the Committee may withhold the complaint though there may be substance in the allegations of land grabbing. The plea of excessive delegation of power by virtue of Section 12(a) of the Act' 2020 is, thus, turned down being devoid of force.

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274. In view of the above, all the contentions to assail the validity of the Land Grabbing Act being manifest arbitrary, hit by the principle of equality, rule of law, the principle of vagueness of the statute and in violation of constitutional provisions, noted hereinbefore, are hereby rejected.

Part III - Doctrine Of Proportionality And Validity Of Mandatory Minimum Sentence (A) Arguments of the learned counsels:-

275. Mr. Tejas Barot, learned advocate for the petitioners had urged that the Act' 2020 provides for unusually harsh and cruel punishment of minimum mandatory sentence of 10 years, which may extend to 14 years, which is disproportionate to the gravity of offence. Pressing the doctrine of proportionality of punishment or sentence into service, it was vehemently urged that the offence of land grabbing is an offence against the property and not against a human body.

(i) "Injury" word in the legal parlance as stated in Section 44 of the Indian Penal Code denotes "any harm whatsoever illegally caused to any person, in body, mind, reputation or Page 324 of 417 Downloaded on : Mon May 13 20:36:50 IST 2024 NEUTRAL CITATION C/SCA/2995/2021 CAV JUDGMENT DATED: 09/05/2024 undefined property". Section 235 of the Code of Criminal Procedure mandates that after conviction of the accused, the judge shall hear the accused on the question of sentence before passing sentence on him.

Right of the accused to plead for grant of lesser period of sentence has been taken away by the Legislature by providing for punishment with imprisonment for a fixed tenure. An offender can argue that his right not to be imposed harsher punishment has been infringed on the doctrine of proportionality, which is also a facet of Article 21 of the Constitution of India.

It is the duty of the Court to consider mitigating circumstances before awarding sentence which has become redundant by the statute by providing minimum sentence that too of 10 years imprisonment. Anomalies created due to the minimum mandatory sentence, as asserted, are that by providing standard mandatory sentence in place of an individualised sentence not proportionate with the gravity of offence, very harsh and cruel punishment has been incorporated in the statute, which serves no social purpose. Minimum mandatory sentence cannot be reduced Page 325 of 417 Downloaded on : Mon May 13 20:36:50 IST 2024 NEUTRAL CITATION C/SCA/2995/2021 CAV JUDGMENT DATED: 09/05/2024 undefined even by the Appellate Court though the Appellate Court may be of the opinion that there are mitigating and extenuating circumstances or other intervening circumstances, which warrant reduction of sentence for the period already undergone.

(ii) Right to life enshrined in Article 21 of the Constitution of India envisages that no person can be deprived of his life or personal liberty except by due process of law. Reasonableness of legislative action in depriving a person of his personal liberty must be projected in the statutory provision or else, it would be hit by Article 21. Doctrine of proportionality is to be tested on the anvil of Article 21.

It is argued that any statute providing for disproportionate punishment is arbitrary and can be tested on the anvil of proportionality which is also known as "primary review" by the Courts when the validity of legislation offends fundamental freedom. The concept of due process has been incorporated in our Constitution as an integral part of guarantee under Articles 13 , 14 and 21 of the Constitution of India and, thus, a sentence which is disproportionate Page 326 of 417 Downloaded on : Mon May 13 20:36:50 IST 2024 NEUTRAL CITATION C/SCA/2995/2021 CAV JUDGMENT DATED: 09/05/2024 undefined violates the constitutional guarantee.

(iii) The Apex Court in the case of State Of Punjab vs Dalbir Singh66 while examining the constitutional validity of Section 27(3) of the Arms Act, 1959, providing for maximum punishment with death, has held that the said provision deprives the judiciary from discharging its Constitutional duties of judicial review whereby it has the power of using discretion in the sentencing procedure. The decision of the Apex Court has in Bachan Singh Vs. State of Punjab67 , been referred therein that this power has been acknowledged in Section 302 IPC where it has been held that the sentencing power has to be exercised in accordance with the statutory sentencing structure under Section 235(2) and also under Section 354(3) of the Code of Criminal Procedure. Imposing mandatory death penalty under Section 27(3) of the Arms Act, the legislation runs contrary to those statutory safeguards which give judiciary the discretion in the matter imposing death penalty. Section 27(3) has, thus, been held ultra vires the concept of judicial review, which is one of the basic feature of our Constitution.

[2012 ( 3) SCC 346] State Of Punjab vs Dalbir Singh 67 [(1982) 3 SCC 24] Bachan Singh Vs. State of Punjab Page 327 of 417 Downloaded on : Mon May 13 20:36:50 IST 2024 NEUTRAL CITATION C/SCA/2995/2021 CAV JUDGMENT DATED: 09/05/2024 undefined While holding so, the Apex Court has observed that Article 13(2) clearly prohibits the making of any law by the State which takes away or abridges rights, conferred by Part III of the Constitution. In the event of such a law being made, the same shall be void to the extent of contravention. It is the judiciary which can give the declaration that a law being in contravention of the mandate of Part- III of the Constitution is void. The power of judicial review, thus, inheres in our Constitution. It is a fundamental principle of just sentencing that the punishment imposed on a convict should be proportionate to the gravity of the crime of which he has been convicted. The criminal culpability of those convicted of murder varies very widely.

Further, the administration of justice was considered a function of the Judiciary. The entire process of trial from the arraignment of an accused person to his/her sentencing is what constitutes administration of justice. The imposition of mandatory minimum punishment for a particular offence is neither authorised nor prohibited in the Constitution. As the Constitution is silent, it is for the Courts to give a valid constitutional interpretation Page 328 of 417 Downloaded on : Mon May 13 20:36:50 IST 2024 NEUTRAL CITATION C/SCA/2995/2021 CAV JUDGMENT DATED: 09/05/2024 undefined on the mandatory nature of sentence.

A convicted accused ought to be given an opportunity to show why the particular sentence should be passed against him. There is denial to a fair hearing when no opportunity is given to an accused person to offer mitigating circumstances before sentence, which is the normal procedure in all other trials for non-capital offences. Sentencing is part of the trial and mitigation is an element of fair trial. Sentencing is a matter of law and part of the administration of justice which is the preserve of the Judiciary. It was, thus, observed that the Parliament should only prescribe the maximum sentence and leave the courts to administer justice by sentencing the offender according to the gravity and circumstances of the case.

(iv) Reference has been made to decision of the Apex Court in Bachan Singh vs State Of Punjab 67 to submit that it was noted therein that the Apex Court in Maneka Gandhi's56 case, by a process of judicial interpretation brought in the procedural due process clause of the American Constitution by reading in Article 21 the requirement that the procedure by which a person may be deprived of his life or personal Page 329 of 417 Downloaded on : Mon May 13 20:36:50 IST 2024 NEUTRAL CITATION C/SCA/2995/2021 CAV JUDGMENT DATED: 09/05/2024 undefined liberty must be reasonable, fair and just. It was urged that a penalty should be considered 'unusually' imposed if it is imposed arbitrarily or discriminatorily.

(v) V.R. Krishna Iyer, J., in Sunil Batra vs Delhi Administration68 , has observed emphatically that though our Constitution has no "due process" clause, but what is punitively outrageous, scandalizingly unusual or cruel and rehabilitatively counterproductive, is unarguably unreasonable and arbitrary and is shot down by Articles 14 and 19 of the Constitution of India and if inflicted by procedural unfairness, falls foul of Article 21.

(vi) In Mithu vs. State of Punjab69 , it was noted with reference to the observations in Maneka Gandhi56, that principally the concept of reasonableness must be projected in the procedure contemplated by Article 21 , having regard to the impact of Article 14 on that Article. The word 'Law' in the expression 'procedure established by law' in Article 21 has been interpreted to mean in Maneka Gandhi's56 case that the law must be right, 68 [( 1948) 4 SC 494] Sunil Batra vs Delhi Administration 69 [1983 (2) SCC 277] Mithu vs. State of Punjab Page 330 of 417 Downloaded on : Mon May 13 20:36:50 IST 2024 NEUTRAL CITATION C/SCA/2995/2021 CAV JUDGMENT DATED: 09/05/2024 undefined just and fair, and not arbitrary, fanciful or oppressive. Otherwise it would be no procedure at all and the requirement of Article 21 would not be satisfied. If it is arbitrary, it would be violative of Article

(vii) It was urged that a sentence can be attacked on the ground that it is grossly disproportionate to the punishment that is appropriate. The constitutional principle of proportionality in sentencing policy brought into the US Constitution by Eighth Amendment, reads as under:-

The test to be applied by a US Court on the proportionality principle under the Eighth Amendment has been laid down by US Supreme Court 156, wherein it is held that when sentences are reviewed under the Eighth Amendment, Courts should be guided by objective factors, including (i) the gravity of the offence and the harshness of the penalty; (2) the sentences imposed on the other criminals in the same jurisdiction;

(iii) the sentences imposed for commission of the same crime in other jurisdictions.

NEUTRAL CITATION C/SCA/2995/2021 CAV JUDGMENT DATED: 09/05/2024 undefined Application of these factors assumes that the Courts are competent to judge the gravity of an offence at least on a relative scale. The comparison can be made in light of the harm caused or threat to the victim or society, and the culpability of the offence.

(viii) A decision of the Supreme Court of Canada in R vs. Nur reported in Supreme Court of Canada70 has been placed before us wherein it was held that the test of gross disproportionality "is aimed at punishments that are more than merely excessive". A prescribed sentence may be grossly disproportionate as applied to the offender before the court, or because it would have a grossly disproportionate impact on others, rendering the law unconstitutional. The principle of sentencing contemplated that the sentencing judge must also have regard to the aggravating and mitigating factors, including that a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances.

With the aid of the said decision , it was urged that imposing a proportionate sentence is highly individualised exercise tailored to 70 [2015 SCC 15] R vs. Nur reported in Supreme Court of Canada Page 332 of 417 Downloaded on : Mon May 13 20:36:50 IST 2024 NEUTRAL CITATION C/SCA/2995/2021 CAV JUDGMENT DATED: 09/05/2024 undefined the gravity of offence, the blameworthiness of the offender and the harm caused by the crime. Proportionality is the sine qua non of a just sentence. The principle ensures that a sentence reflects the gravity of the offence. This is closely tied to the objective of denunciation. It promotes justice for victims and ensures public confidence in the justice system. The principle of proportionality also ensures that a sentence does not exceed what is appropriate, given the moral blameworthiness of the offender. The principle serves a limiting or restraining function and ensures justice for the offender.

It was vehemently urged by placing reliance on the observations therein that minimum mandatory sentences, by their very nature, have the potential to depart from the principle of proportionality in sentencing. They emphasize denunciation, general deterrence and retribution at the expense of what is a fit sentence for the gravity of the offence, the blameworthiness of the offender.

(ix) The submission is that this concept was brought in India and was taken into account for the first time in the decision of the Apex Court in Francis Coralie Mullin vs The Page 333 of 417 Downloaded on : Mon May 13 20:36:50 IST 2024 NEUTRAL CITATION C/SCA/2995/2021 CAV JUDGMENT DATED: 09/05/2024 undefined Administrator, Union Territory Of Delhi71 wherein the constitutional validity of sub- clauses (i), (ii) of Clause 3 (b) of the conditions of the detention order was challenged principally being violative of Articles 14 and 21 of the Constitution of India, as arbitrary and unreasonable. The Apex Court while analysing the question before it has taken note of evolution of the law pertaining to the scope and ambit of the guarantee embodied in Article 21 in Maneka Gandhi56 and Sunil Batra68, noted hereinbefore. The emphasis have been laid to the observations in paragraph 8, which reads that :-

(x) With the aid of the above principles, it was argued by Mr. Tejas Barot, learned advocate for the petitioners that minimum mandatory sentence under the Land Grabbing Act' 2020 has the effect of deprivation of two benefits, namely :-

small piece of land, or the successor in interest bonafide obtained possession without any knowledge of the title of his predecessors have been treated equally with that of persons who are indulging in organised crime or can be termed as land mafia. There may be a situation where a person termed as "land grabber" has Page 336 of 417 Downloaded on : Mon May 13 20:36:50 IST 2024 NEUTRAL CITATION C/SCA/2995/2021 CAV JUDGMENT DATED: 09/05/2024 undefined entered into property by lawful means or has lawful entitlement to the property, such a person cannot be said to be a "land grabber". However, even innocent person or a person having lawful entitlement to the subject land is forced to face criminal trial. The sentencing policy under the impugned enactment, thus, does not distinguish between one time offender and a land mafia.

(b) It deprives an offender benefits under the Probation of Offences Act, 1958 (" PO Act " for short). In a given case, the Court may find it justified to release the accused under the PO Act , but such benefits cannot be granted, for the Act' 2020 prescribes a minimum sentence. Placing reliance on the decision of the Apex Court in Superintendent, Central Excise vs. Bahubali72 , it was argued that the benefit of Sections 3 , 4 and 6 of the PO Act, as observed by the Apex Court in Rattan Lal v. State of Punjab73 , is a milestone in the progress of the modern liberal trend of reform in the field of penology, which can be claimed subject to 72 [( 1979) 2 SCC 279] Superintendent, Central Excise vs. Bahubali 73 [AIR 1965 SC 444] Rattan Lal v. State of Punjab Page 337 of 417 Downloaded on : Mon May 13 20:36:50 IST 2024 NEUTRAL CITATION C/SCA/2995/2021 CAV JUDGMENT DATED: 09/05/2024 undefined conditions specified therein by all offenders other than those found guilty of offences punishable with death or life imprisonment. However, since the provisions of the Act' 2020 are excluded, by Section 4(3) and 5 of the Act' 2020, which prescribes of minimum sentence of imprisonment, it being a case of offence under a Special Act , enacted after the PO Act , the provisions of PO Act cannot be invoked. The result is that a person who is found to be guilty of the offence specified in Section 4(3) of the Land Grabbing Act, 2020, cannot take recourse to the provisions of PO Act .

(xi) With the aid of the decision of the Apex Court in State Through S.P., New Delhi vs Ratan Lal Arora74 placed before us, it was submitted that the broad principle is that the punishment must be proportionate to the offence and ought to be of universal application, save where the statute bars the exercise of judicial discretion either in awarding punishment or in releasing an offender on probation in lieu of sentencing him. In cases where a specific enactment enacted after the Probation Act , prescribes a 74 [(2004) 4 SCC 590] State Through S.P., New Delhi vs Ratan Lal Arora Page 338 of 417 Downloaded on : Mon May 13 20:36:50 IST 2024 NEUTRAL CITATION C/SCA/2995/2021 CAV JUDGMENT DATED: 09/05/2024 undefined minimum sentence of imprisonment, the provisions of the Probation Act cannot be invoked if the Special Act contains any provision to enforce the same without reference to any other Act containing the provision in derogation of the special enactment. The result is that there is no scope for extending the benefit of the Probation Act to the accused of the offence of land grabbing.

(xii) With this, it was argued that no standard sentencing policy can be claimed, inasmuch as, while sentencing, the right to be informed of the mitigating circumstances against the accused person has been taken away by providing minimum sentence for the offence of "land grabbing". It has a savaging effect and cannot withstand the test of scrutiny within the power of judicial review on the principles of reasonableness.

(xiii) A decision of the Constitutional Court of South Africa appended at page '146' of Part I of the compilation given by Mr. Tejas Barot has been placed before us to demonstrate that the decisions of this Court in Bachan Singh67 and Jagmohan Singh vs The State Of U.P.75 have 75 [(1973) 1 SCC 20] Jagmohan Singh vs The State Of U.P. Page 339 of 417 Downloaded on : Mon May 13 20:36:50 IST 2024 NEUTRAL CITATION C/SCA/2995/2021 CAV JUDGMENT DATED: 09/05/2024 undefined been noted therein. It was held therein that the Legislature is not empowered to compel any Court to pass a sentence, which is inconsistent with the Constitution.

(xiv) Reference has been made to the provisions of Prohibition of Dowry Act, 1961 (the "PD Act" for short) to submit that for the minimum sentence provided therein, discretion is left with the Court to reduce for special reasons, and as such, the provisions of PO Act may be applied.

(xv) The submission, thus, is that striking a balance on the principle of proportionality, minimum mandatory sentence of 10 years' rigorous imprisonment to offender under the Land Grabbing Act' 2020 which results in the deprivation of right to life to an offender is to be read down, to give discretion to the Courts to decide as to what would be the proportionate sentence considering the gravity of the offence and the degree of responsibility of the offender in a given case, depending upon the facts and circumstances of the said case. The Court may be able to evaluate the gravity and mitigating factors to prescribe a sentence, which is proportionate and not excessive. The Page 340 of 417 Downloaded on : Mon May 13 20:36:50 IST 2024 NEUTRAL CITATION C/SCA/2995/2021 CAV JUDGMENT DATED: 09/05/2024 undefined provision of sentencing under Section 4(3) , according to Mr. Barot, can be, thus, saved from the vice of unconstitutionality, by reading it down.

It was submitted that the Statement of Object and Reasons of the Land Grabbing Act shows that the Act has been enacted with a laudable object to curb the acts or attempts of Land Grabbing, creating third party rights by sale or attempt to sale, etc. However, the legislature remains oblivious of the small offenders while prescribing a minimum mandatory punishment of 10 years of imprisonment, which is cruel and unusual punishment. The assertion is that the whole object of the Act' 2020 is to curb social evil of grabbing of someone else's land. The PD Act has also been brought with the laudable object to curb social evil of demand of dowry. Demand of dowry is a grave offence as it affects the society at large, however, while providing minimum sentence of six months, a proviso has also been added giving liberty to the Court to impose a sentence of imprisonment for a term of less than six months, for adequate and special reasons to be mentioned in the judgment.

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(b) Usurpation of Power by Legislature in Providing Sentencing Policy

(i) There is another limb of argument to challenge the proportionality of sentence under the Land Grabbing Act' 2020. It was urged that disproportionate sentence, excessive, cruel and harsh punishment is not a question of overlapping, but it is usurpation of judicial function. It was argued that in providing minimum mandatory sentence, the legislature has usurped the power of the Court in the matter of sentencing policy. Reference has been made to the decision of the Apex Court in Bhim Singh vs U.O.I76 [(2010) 5 SCC 538]. As per the ratio of the said decision , the concept of Separation of Powers, even though not found in any particular constitutional provision, but is inherent in the polity the Constitution has adopted. The aim of separation of powers is to achieve the maximum extent of accountability of each branch of the Government. The Separation of Powers is an essential feature. While understanding this concept, two aspects must be borne in mind. One, that the separation of powers is an essential feature of the Constitution and two, in modern governance, a 76 [(2010) 5 SCC 538] Bhim Singh vs U.O.I Page 342 of 417 Downloaded on : Mon May 13 20:36:50 IST 2024 NEUTRAL CITATION C/SCA/2995/2021 CAV JUDGMENT DATED: 09/05/2024 undefined strict separation is neither possible, nor desirable. Nevertheless, till this principle of accountability is preserved, there is no violation of separation of powers.

(ii) Elaborating further, it was urged that the doctrine of separation of powers has been deliberated in the celebrated decisions in Kesavananda Bharati vs. State of Kerala & Another77 , Indira Gandhi vs. Raj Narain78 . The Apex Court declared separation of powers to be a part of basic structure of the Constitution. It was held that a legislation which upsets the balance between the various organs of the State, it takes over essential function of the other branch, leading to lapse in Constitutional accountability, falls foul of the principle of separation of powers under the Constitution.

(iii) Elaborating his submission, it was argued that the experience shows that the Executive Committee constituted by the State Government under Section 2(a) read with Section 12(a) of the Act' 2020 while making inquiry under the Rules' 2020 passes a conditional order on the complaint of land 77 [( 1973) 4 SCC 225] Kesavananda Bharati vs. State of Kerala & Another 78 [(1976) 3 SCC 321] Indira Gandhi vs. Raj Narain Page 343 of 417 Downloaded on : Mon May 13 20:36:50 IST 2024 NEUTRAL CITATION C/SCA/2995/2021 CAV JUDGMENT DATED: 09/05/2024 undefined grabbing asking the accused person to surrender the land occupied by him within a certain period or else FIR is lodged. The Committee of Executives cannot be expected to understand the nuances of law, the disputed questions of title or right in the property cannot be decided by the Committee. However, ample power has been given to the Committee in the inquiry by virtue of Rule 5(4)(5) of Rules' 2020 to conclude on the question of land title and occupation of land in unauthorised manner with the use of force, threat, etc. The result is that the Committee is conferred with the decision making power which is otherwise to be exercised by judicial Court.

(iv) With the aid of the said decision, it was argued that if the language of Rule 5 Sub-Rule (4) and Sub-Rule (7) of the Rules' 2020, made in the Land Grabbing Act, 2020 are read and interpreted, they not only overlap judicial functions of the Court to decide on the question of title and/or the act of land grabbing, but the Executive Committee takes over the essential function of judicial branch of the State, leading to lapse in Constitutional accountability. In the result, Page 344 of 417 Downloaded on : Mon May 13 20:36:50 IST 2024 NEUTRAL CITATION C/SCA/2995/2021 CAV JUDGMENT DATED: 09/05/2024 undefined the task entrusted to the Committee to decide the question of title and/or the act of land grabbing is violative of the principle of separation of powers and, thus, the basic structure of the Constitution. Moreover, the said Rules framed by the legislature are excessive delegation of power to the Committee, which otherwise has been entrusted to the Court under the main enactment, namely, the Land Grabbing Act.

The submission is that the enabling provisions in the Act' 2020 are under Section 2(a) and 12 and the Rules framed by the State must fulfill the purpose of the Act' 2020. However, since the scope and extent of the power is not set out in the Act, the Rules travel beyond the provisions of the Act' 2020. Rules are not in conformity with the Act' 2020, inasmuch as, the enabling provisions are silent on the conferment of power to the Committee.

Sub-rule (2) of Rule 5 confers quasi judicial power to the Collector or the State Government in taking suo motu cognizance and action against a person who has allegedly grabbed the land and is a "headstrong person". The word "headstrong person" has not been Page 345 of 417 Downloaded on : Mon May 13 20:36:50 IST 2024 NEUTRAL CITATION C/SCA/2995/2021 CAV JUDGMENT DATED: 09/05/2024 undefined defined under the Rule and surprisingly, used in the Rules, though there is no reference of the said word in the entire Act. The discretion given to the Collector to decide as to who would be a 'headstrong person', thus, is unguided and unbridled. For the above reasons, the Rules' 2020 framed under the Act suffer from the vice of excessive delegation.

(v) Reliance is placed on the decision of the Apex Court in the State of Madhya Pradesh and Another vs Baldeo Prasad79 to submit that in the similar circumstances, the Apex Court while considering the validity of the Central Provinces and Berar Goondas Act X of 1946 (in short " Goonda Act ') as amended by the Madhya Pradesh Act XLIX of 1950, has held that where a statute empowers the specified authorities to take preventive action against the citizens, it is essential that it should expressly make it a part of the duty of the said authorities to satisfy themselves about the existence of what the statute regards as conditions precedent to the exercise of the said authority. If the statute is silent in respect of one of such conditions precedent it undoubtedly constitutes a serious infirmity which would inevitably take it out of the 79 [AIR 1961 SC 293] Madhya Pradesh and Another vs Baldeo Prasad Page 346 of 417 Downloaded on : Mon May 13 20:36:50 IST 2024 NEUTRAL CITATION C/SCA/2995/2021 CAV JUDGMENT DATED: 09/05/2024 undefined provisions of Art. 19(5). The result of this infirmity is such that it has left to the unguided and unfettered discretion of the authority concerned to treat any citizen as a goonda (a 'headstrong person' under the Rules' 2020 framed under the Act' 2020).

(c) Vesting Of Discretion In Authorities

276. It was urged that vesting of discretion in authorities in exercise of power under an enactment does not by itself entail contravention of Article 14. However, what is objectionable is conferment of arbitrary and uncontrolled discretion without any guidelines whatsoever with regard to the exercise of that discretion. The enactment must prescribe the guidelines for the furtherance of the objects of the enactment and it is within the framework of those guidelines that the authorities can use their discretion in the exercise of the powers conferred upon them. The discretion which is absolute, uncontrolled and without any guidelines in the exercise of powers can easily degenerate into arbitrariness.

277. It was contended that the Apex Court has added a word of caution in the State Of Punjab And Page 347 of 417 Downloaded on : Mon May 13 20:36:50 IST 2024 NEUTRAL CITATION C/SCA/2995/2021 CAV JUDGMENT DATED: 09/05/2024 undefined vs Khan Chand80 that when individuals act according to their sweet will, there is bound to be an element of 'pick and choose' according to the notion of the individuals. If a Legislature bestows such untrammeled discretion on the authorities acting under an enactment, it abdicates its essential function for such discretion is bound to result in discrimination which is the negation and antithesis of the ideal of equality before law as enshrined in Article 14 of the Constitution. It is no answer to the above that the executive officers are presumed to be reasonable men who do not stand to gain in the abuse of their power and can be trusted to use "discretion" with discretion. It was noted by the Apex Court therein that the point is that no one ought to be trusted with power without restraint. Where after scrutiny court finds that the statute provides for the delegation of arbitrary and uncontrolled power to the Government so as to enable it to discriminate between persons or things similarly situate and that, therefore, the discrimination is inherent in the statute itself. In such a case, the Court will strike down both the law as well as the executive action under such 80 [1974 (1) SCC 549] State Of Punjab And vs Khan Chand Page 348 of 417 Downloaded on : Mon May 13 20:36:50 IST 2024 NEUTRAL CITATION C/SCA/2995/2021 CAV JUDGMENT DATED: 09/05/2024 undefined law.

278. Referring the Sub-Rule (8) of Rule 5, which empowers the Committee to decide the further course of action on consideration of the inquiry report, including filing of the FIR, it was urged that the said Rule also gives excessive power to the Committee to decide as to whether action is to be initiated against a person alleged to be a land grabber, more so when the power to take cognizance of a complaint of land grabbing either suo motu or on application of a person, has been conferred upon the Special Court under the Act. Reference has been made to the following decisions of the Apex Court :-

4. Indian Express News Papers (1985) 1 SCC 641 (Bombay) Pvt. Ltd. vs. Union of India and Ors.

5. State of Tamil Nadu vs. P. (2006) 4 SCC 517 Krishnamurthy Page 349 of 417 Downloaded on : Mon May 13 20:36:50 IST 2024 NEUTRAL CITATION C/SCA/2995/2021 CAV JUDGMENT DATED: 09/05/2024 undefined

(d) Unbridled and untrammeled discretion leads to arbitrariness

279. It was submitted that the subordinate legislation can be challenged on the ground of unreasonableness and that it must confirm to the statute, however, same degree of immunity is not available to the subordinate legislation. It was further argued that the arbitrariness in the constitution of Committee for which no guidelines have been provided under the Act, would make the constitution of Committee unconstitutional.

280. Mr. Kamal B. Trivedi, learned Advocate General for the State, in rebuttal, would submit that mens rea is an essential ingredient of Section 4(2) of the Land Grabbing Act and the same is expressly included within the scope of the said provision, with the use of expression "grabbed land", which is otherwise referred to section 2(e) defining the term "land grabbing". With the words "with a view to illegally taking possession or creating illegal tenancies, etc. or by constructing unauthorised structures thereon for sale, etc. or use or occupation of such unauthorized constructions", the presence of mens rea that is implied in the statute, creating "land Page 350 of 417 Downloaded on : Mon May 13 20:36:50 IST 2024 NEUTRAL CITATION C/SCA/2995/2021 CAV JUDGMENT DATED: 09/05/2024 undefined grabbing" an offence in line with the object and purpose of the Act, can be gathered.

281. Assailing the contentions of the learned counsel for the petitioners on the principle of proportionality of punishment, reliance is placed the decisions of the Apex Court in Vikram Singh @ Vicky & Anr vs Union Of India 81 and Raju Jagdish Paswan v. State of Maharashtra82 to submit that interference in the sentencing policy on the principle of proportionality, i.e. disproportionate punishment is extremely rare, inasmuch as, it is the legislature's work to decide on the sentencing considering the circumstances in which law was made. Judicial interference in the sentencing policy is confined to the contours of grossly disproportionate, harsh, cruel and unreasonable in rare cases. In Indian perspective, the said principles laid down in Bachan Singh67 and Mithu69 by the Apex Court cannot apply as a general principle.

282. With the aid of the decision in Vikram Singh @ Vicky81, wherein the vires of Section 364A inserted in Indian Penal Code , which prescribed death sentence for anyone found 81 [( 2015) 9 SCC 502] Vikram Singh @ Vicky & Anr vs Union Of India 82 [(2019) 16 SCC 380] Raju Jagdish Paswan v. State of Maharashtra Page 351 of 417 Downloaded on : Mon May 13 20:36:50 IST 2024 NEUTRAL CITATION C/SCA/2995/2021 CAV JUDGMENT DATED: 09/05/2024 undefined guilty for ransom was subject matter of challenge. It was argued that the Apex Court has drawn a line therein by applying the principle that a presumption is attached to the law enacted by Parliament or State Legislature within their respective legislative fields specified under the Constitution. It was observed that in a parliamentary democracy like ours, the legislatures are meant to cater to the societal demands and meet the challenges of the time, for the legislature is presumed to be supremely wise and aware of such needs and challenges of the time. The means for redressing a mischief are also in the realm of legislation and so long as those means are not violative of the constitutional provisions or the fundamental rights of the citizens, the Courts will show deference towards them. However, this does not mean that laws that are outrageously barbaric or penalties that are palpably inhuman or shockingly disproportionate to the gravity of the offence for which the same are prescribed cannot be interfered with. However, the Courts are bound but not free to apply a fanciful procedure to examine the reasonableness or proportionality.

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283. It was placed that the guiding principles for determining whether the sentence is disproportionate to the offence, culled out therein from the previous decisions of the Apex Court, is that prescribing punishment for crimes rests with the legislature and not Courts and that Courts ought to show deference to the wisdom of the Legislature. It was placed that the aforesaid principle has been drawn on consideration of the decisions of the US Supreme Court on the application of Eighth amendment of US Constitution. It was held therein that the Eighth amendment does not mandate adoption of any one penalogical theory and the principle that guide criminal sentencing have varied with the times. Proportionality review by the Federal Courts must be informed by objective factors to the maximum possible extent. It was, thus, concluded that prescribing punishments is the function of the legislature and not the Courts. The Legislature is presumed to be supremely wise and aware of the needs of the people and the measures that are necessary to meet those ends. Courts cannot interfere with the prescribed punishment only because the punishment is perceived to be excessive.

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284. In Raju Jagdish Paswan82, the principles of proportionality recognised by the Apex Court in Vikram Singh @ Vicky81, were noted and applied to examine the question whether the death penalty imposed on the appellant therein was disproportionate to the crime committed by him. It was submitted that, however, the decisions rendered in capital cases are not of much assistance while deciding the constitutionality of punishments in non- capital cases.

285. With the aid of the observations of the Apex Court in paragraph '43' in Vikram Singh @ Vicky81 , with reference to the US Supreme Court decision in Herman Solem v. Jerry Buckley Helm83, it was submitted that the Apex Court has noted therein that outside the context of capital punishment, successful challenges to the proportionality of sentences were extremely rare. However, it does not mean that proportionality analysis was entirely inapplicable to the non-capital cases. In any case, the courts have jurisdiction to interfere with the punishment prescribed by applying the principle of judicial review keeping in mind the basic structure of the constitution of separation of power. Judicial 83 [1983 SCC Online USSC 1556] Herman Solem v. Jerry Buckley Helm Page 354 of 417 Downloaded on : Mon May 13 20:36:50 IST 2024 NEUTRAL CITATION C/SCA/2995/2021 CAV JUDGMENT DATED: 09/05/2024 undefined interference in the sentencing policy cannot be casual and is to be invoked in a case where the sentence is so outrageously disproportionate, abhorrent or intolerable, so excessive as to outrage standards of decency.

286. The attention of the Court is invited to the observations of the Apex Court in Prakash Kadam vs Ramprasad Vishwanath Gupta & Anr 84, where the Apex Court has observed that the worst state of affairs possible in society is the state of lawlessness. When the rule of law collapses, it is replaced by the law of the jungle. There is nothing worse in the world than lawlessness and it is the duty of the King carrying the rod of punishment to protect the earth so that the strong persons do not destroy the weaker ones, just like in water the big fish eat the small fish. The Apex Court therein had noted these principles from the statement of ancient thinkers, such as Kautilya in Matsyapurana.

287. The learned Advocate General has further placed several Sections of Indian Penal Code , providing for mandatory minimum sentence, to submit that none of them have so far been held to be unusual or disproportionate. There are 84 [2011 ( 6) SCC 189] Prakash Kadam vs Ramprasad Vishwanath Gupta & Anr Page 355 of 417 Downloaded on : Mon May 13 20:36:50 IST 2024 NEUTRAL CITATION C/SCA/2995/2021 CAV JUDGMENT DATED: 09/05/2024 undefined punishments ranging from minimum sentence of 6 months to 7 years or so. There are various provisions where minimum sentence has not been provided as the Sections prescribes for imprisonment of either description with maximum punishment. All these offences carrying punishment having minimum sentence or prescribing only maximum sentence are the creature of the legislature depending upon the nature and gravity of the offence. There is no general rule that merely because of prescribing mandatory sentence, the Courts can hold that the legislature has overreached its jurisdiction or encroached upon the jurisdiction of the judicial courts.

288. It was urged that applying the principle that prescribing punishments is the function of the legislature and not the courts, the arguments of Mr. Tejas Barot, learned advocate for the petitioners on the doctrine of proportionality and usurpation of power by the legislature in prescribing minimum mandatory sentence of 10 years in a proven case of offence of land grabbing being excessive, are liable to be rejected, outrightly.

289. Referring to the decisions placed by Mr. Barot, learned advocate on Francis Coralie Page 356 of 417 Downloaded on : Mon May 13 20:36:50 IST 2024 NEUTRAL CITATION C/SCA/2995/2021 CAV JUDGMENT DATED: 09/05/2024 undefined Mullin71, Bachan Singh67 and Mithu69 it was argued that all these cases are distinguishable, inasmuch as, the Apex Court in those cases were dealing with extreme punishment of death sentence or a provision in the conditions of detention order regulating the right of a detenue to have interview with the legal adviser of his choice. In Mithu69, the Court was dealing with the validity of Section 302 of the Indian Penal Code, which prescribes punishment with death for offence of murder committed by a person who was under

290. With reference to the decision in Herman Solem v. Jerry Buckley Helm83, relied by the learned counsel for the petitioners, it was urged that the US Supreme Court in that case did not strike down the punishment, rather analysed the proportionality of the punishment imposed by the competent court on the principle of proportionality. It was urged that the ratio of the decision referred and relied upon by Mr. Barot are not applicable to the instant case. The reference to the decision in Shayara Bano33 on the principle of proportionality is misplaced.

291. The decision in the State Of Punjab vs Dalbir Singh66 , is sought to be distinguished with the observations in paragraphs '23' and '24' therein to submit that the opinion drawn by the Apex Court while examining the constitutionality of Sections 27(3) providing for punishment with death, cannot be brought into service to decide the question of validity of mandatory sentence of 10 years' imprisonment for the offence under the Land Grabbing Act. The Apex Court while upholding the challenge to the validity of Section 27(3) of the Arms Act by declaring it ultra vires Page 358 of 417 Downloaded on : Mon May 13 20:36:50 IST 2024 NEUTRAL CITATION C/SCA/2995/2021 CAV JUDGMENT DATED: 09/05/2024 undefined the Constitution and void, has observed that the said Section is very wide in the sense anything done in contravention of Section 7 of the Act and with the use of prohibited arms and ammunition, resulting in death, will attract the mandatory death penalty. A very drastic provision which imposes a mandatory death penalty is so widely worded to the extent that if as a result of any accidental or unintentional use or any accident arising out of any act in contravention of Section 7 , death results, the only punishment, which has to be mandatorily imposed on the person in contravention, is "death" and the word 'results' means the outcome which is wider than the expression 'causes'. Therefore, it was held that very wide expression has been used in Section 27(3) of the Act and without any guidelines leading to mandatory punishment of death penalty. With these arguments, it was submitted by the learned Advocate General that none of the decisions relied by the petitioners can be made basis for exercise of power of judicial review to examine the gravity of the punishment prescribed by the Legislature under the Land Grabbing Act.

(B) ANALYSIS & CONCLUSION:-

292. Proportionality as a constitutional doctrine has been highlighted by the Apex Court in Om Kumar vs. Union of India85 . Tracing developments in the law on the doctrine of proportionality, it was noted therein that the principle originated in Prussia in the nineteenth Century has since been adopted in Germany, France and other European countries. However, long before that the Indian Supreme Court has applied the principle of "proportionality" to the legislative action since 1950. By "proportionality", the Court meant the question whether while regulating the exercise of fundamental rights, the appropriate or least restrictive choice of measures have been made by the legislature so as to achieve the object of the legislation. Under this principle, the Court will see that the legislature "maintain a proper balance between the adverse effects which the legislation may have on the rights, liberties or interests of persons keeping in mind the purpose which they intended to serve". The legislature, is however, given an area of discretion or a range of choices, but as to 85 [(2001) 2 SCC 386] Om Kumar vs. Union of India Page 360 of 417 Downloaded on : Mon May 13 20:36:50 IST 2024 NEUTRAL CITATION C/SCA/2995/2021 CAV JUDGMENT DATED: 09/05/2024 undefined whether the choice made infringes the rights excessively or not is for the Court to examine. That is what is meant by "proportionality". It was further observed in paragraph '30' as under :-

293. Further, the Apex Court while noticing its previous decision in State of Madras vs V.G. Row86 , has noted that the Court must keep in mind, "nature of the right alleged to have been infringed, the underlying purpose of the restrictions imposed, the extent and urgency of the evil sought to be remedied thereby, the disproportion of the imposition, the prevailing conditions at the time..". The relevant paragraphs '31' and '32' are extracted herein as under:-

294. Thus, it is to be noted that the doctrine of proportionality and the principle of reasonableness of restrictions "based on intelligible differentia are interchangeable or overlapping concepts". The principle that the legislation relating to restrictions on fundamental freedoms could be tested on the anvil of "proportionality" is the settled position of law. As noted hereinbefore, a "primary review" by the Courts of the validity of legislation, which offended fundamental freedoms, is made on the principle of proportionality.

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(b) Proportionality and Sentencing under Criminal Law:-

295. The submission of Mr. Tejas Barot, learned advocate for the petitioners is that the concept of principle of proportionality in sentencing was brought in India and was taken into account for the first time in the decision of the Apex Court in Francis Coralie Mullin71 to test the validity of certain clauses of the conditions of detention order. It may be noted that the Apex Court therein was dealing with the fundamental rights of the detenue under Conservation of Foreign Exchange & Prevention of Smuggling Activities Act (COFEPOSA Act ), to have interview with the lawyer and the members of his family, which were restricted by Sub-clauses (i) and (ii) of Clause 3(b) of the COFEPOSA Act .

296. While testing the validity of the said restriction, it was noted by the Apex Court that the preventive detention is not by way of punishment, but it is intended to preempt a person from indulging in a conduct injurious to the society. It is a drastic power to detain a person without trial and the Constitution though recognised the existence of this power, but it is hedged in by various Page 364 of 417 Downloaded on : Mon May 13 20:36:50 IST 2024 NEUTRAL CITATION C/SCA/2995/2021 CAV JUDGMENT DATED: 09/05/2024 undefined safeguards set out in Articles 21 and 22. It is a power to be exercised with greatest care and caution and the Courts have to be ever vigilant to see that the power is not abused or misused.

297. It was observed therein that the restriction placed on a person preventively detained (detenue) must consistently with the effectiveness of detention, be minimal. The question that whether a person preventively detained in a prison has any rights which he can enforce in a Court of law was considered and answered with the aid of the decision in Sunil Batra68. It was observed that the prisoner or the detenue has all the fundamental rights and other legal rights available to a free person, save those which are incapable of enjoyment by reason of incarceration. The Apex Court elaborating on the right to life enshrined in Article 21 stated that it cannot be restricted to mere animal existence. The right to life includes the right to live with human dignity and every act which offends against or impairs human dignity would have to be in accordance with reasonable, fair and just procedure established by law which stands the test of Page 365 of 417 Downloaded on : Mon May 13 20:36:50 IST 2024 NEUTRAL CITATION C/SCA/2995/2021 CAV JUDGMENT DATED: 09/05/2024 undefined other fundamental rights. As a necessary component of the right to life, the detenue would be entitled to have interviews with the members of his family and friends and no prison regulation or procedure laid down by prison regulation regulating the right to have interviews with the members of the family or friends. It was further observed that when an under-trial prisoner or convicted prisoner is permitted to have interview with his relatives and friends, as per the Rules, the restriction imposed under the condition of detention order is unreasonable and arbitrary, particularly when a detenu stands on higher pedestal than an under-trial prisoner or a convict. With these words, the Apex Court while applying the doctrine of proportionality, has held the provisions as violative of Articles 14 and 21 , unconstitutional and void.

298. In the case of Mithu69, the Court was testing the validity of Section 303 of the IPC when it applied the principle of reasonableness and doctrine of proportionality in prescribing sentence on the anvil of Article 21. The question considered therein was whether the sentence of death prescribed by Section 303 of the IPC for the offence of murder committed by Page 366 of 417 Downloaded on : Mon May 13 20:36:50 IST 2024 NEUTRAL CITATION C/SCA/2995/2021 CAV JUDGMENT DATED: 09/05/2024 undefined a person who is under a sentence of life imprisonment, is arbitrary and oppressive so as to be violative of the fundamental rights conferred by Article 21. It was noted that the normal sentence for murder is life imprisonment; and if the death sentence has to be imposed, the Court is under a legal obligation under Section 354(3) of the Criminal Procedure Code to state the special reasons for imposing the sentence of death. Section 302, thus, provides for the sentence of death as an alternative sentence, which may be imposed for special reasons to be stated by the Court for departure from the normal rule.

299. In the matter of sentencing, there is no rational distinction between a person who commits a murder after serving out sentence of life imprisonment while a person who commits a murder who is still under that sentence. The distinction between two classes proceeds upon irrelevant considerations and bears no nexus with the objects of the statute, viz. the imposition of mandatory sentence of death. Both have to be treated alike in the matter of prescription of punishment and whatever safeguards and benefits are available to the latter must be made available to the former.

NEUTRAL CITATION C/SCA/2995/2021 CAV JUDGMENT DATED: 09/05/2024 undefined The minimum mandatory sentence of death provided under Section 303 , IPC was, thus, held to be violative of Articles 14 and 21 of the Constitution of India.

300. The observations that the standardised mandatory sentence and that too in the form of sentence of death fails to take into account the facts and circumstances of each particular case, was made in the above noted facts and circumstances of the said case.

301. It cannot be culled out from the ratio of the said decision that a general principle has been laid down in the matter of minimum mandatory sentence by the legislature. The observations in the said case that the legislature cannot deprive the Courts of their legitimate jurisdiction to exercise their discretion not to impose the death sentence in appropriate cases, compel them to shut their eyes to the mitigating circumstances and inflict upon them the dubious and unconscionable duty of imposing a preordained sentence of death, have been made in the nature of sentencing provision under Section 303 IPC.

302. The ratio in Mithu69 cannot applied to hold Page 368 of 417 Downloaded on : Mon May 13 20:36:50 IST 2024 NEUTRAL CITATION C/SCA/2995/2021 CAV JUDGMENT DATED: 09/05/2024 undefined that the legislature has no power to provide minimum mandatory sentence for criminal offence by legislative process. Rather, in Mithu69, the Court has noted the observation in the decision of Jagmohan Singh75 , as follows:-

(Ref. Para 16 Mithu69)

303. In Bachan Singh67, there was challenge to the constitutional validity of the death penalty provided in Section 302 of the Indian Penal Code read with Section 353(3) of the Code of Criminal Procedure. The doctrine of proportionality, basic requirement of the equality clause enshrined in Article 14 , the law pertaining to interpretation of the Eighth Amendment of the US Constitution, prohibition against cruel and unusual punishment, were considered in view of the gravity of the sentence which deprives a person of his right to live. However, it is pertinent to note that the argument in Bachan Singh67 that the lack of legislative guidelines to direct Courts in choosing between the two alternative punishments in Section 302 amounted to unlawful delegation of the legislative Page 369 of 417 Downloaded on : Mon May 13 20:36:50 IST 2024 NEUTRAL CITATION C/SCA/2995/2021 CAV JUDGMENT DATED: 09/05/2024 undefined function to the judiciary, was rejected and the majority has agreed that the imposition of standards of tailoring the judicial discretion as to sentence, was a legislative function.

304. The decision placed before us in the compilation is a dissenting opinion of Hon'ble Bhagwati, J. The observation therein that the death penalty is barbaric, cruel and inhuman and opposed to civilised social values, are of no assistance, in the instant case, in view of the nature of offence subject matter of consideration herein. The standards on which the sentence of death penalty has been tested by the Apex Court in Bachan Singh67 cannot be applied by us to hold that the sentence of 10 years' imprisonment for the offence of "Land Grabbing" is excessive or inhuman treatment.

305. Coming to the concept of proportionality principle applied by the US Supreme Court in Herman Solem83, suffice it to note that the test of proportionality under the Eight Amendment, as held therein, is guided by objective criterias noted hereinbefore. The said test was applied by the US Supreme Court to assess the punishment awarded holding that the Courts should be guided by objective factors, such as gravity of the offence and Page 370 of 417 Downloaded on : Mon May 13 20:36:50 IST 2024 NEUTRAL CITATION C/SCA/2995/2021 CAV JUDGMENT DATED: 09/05/2024 undefined the harshness of penalty while examining the question that the punishment is disproportionate to the offence committed.

306. The judgment of the Canadian Supreme Court in R vs. Nur70 while observing that mandatory minimum sentences, by their very nature, have the potential to depart from the principle of proportionality in sentencing, and violates the principle of proportionality, has recognised the wisdom of Parliamentary Committee. It has been held therein that mandatory minimum sentence in Section 95(2) of the Criminal Code were part of a suite of legislative changes put forward as "a direct response to the scourge of handgun crime that plagues our country". Observing that the Parliament's choice to raise the mandatory minimum in Section 95 must be understood as a choice reflecting valid and pressing objectives, it was held therein that it is not for the Court to frustrate the same.

(c) Legislative Supremacy and Power of Judicial Review:-

307. All the above noted decisions relied by the learned counsel for the petitioners have been considered by the Apex Court in Vikram Singh81, while dealing with the Constitutional validity Page 371 of 417 Downloaded on : Mon May 13 20:36:50 IST 2024 NEUTRAL CITATION C/SCA/2995/2021 CAV JUDGMENT DATED: 09/05/2024 undefined of Section 364-A IPC providing for the punishment of death or imprisonment of life for the offence of kidnapping for ransom. The decision of the US Supreme Court in Ronald Allen Harmelin v. Michigan87 has been noted to record that the US Supreme Court has revisited the approach to be adopted while determining the question of constitutionality of sentences for non-capital offences. Based on a conspectus of the decisions including Herman Solem83, the Court has formulated some common principles applicable in a situation that required examination of limits of proportionality. The principles culled out in paragraphs '47.1 to 47.4' in Vikram Singh81 from the decision of the Apex Court in Harmelin87 are relevant to be extracted hereunder :-

NEUTRAL CITATION C/SCA/2995/2021 CAV JUDGMENT DATED: 09/05/2024 undefined

308. It is noted in paragraph '48' with the aid of the decision in Ewing v. California88 [2003 SCC Online US SC 16] that a sentence can have a variety of justifications, such as incapacitation, deterrence, retribution, or rehabilitation. Some or all of these justifications may play a role in a State's sentencing scheme. Selecting the sentencing rationales is generally a policy choice to be made by State legislatures, and not the federal courts. The Canadian view on the principle of proportionality of sentence in R v. Smith89 was noted as:-

(Ref. Para 49 of Vikram Singh81) The conclusion drawn by the Apex Court in the case of Vikram Singh81, are to be noted hereinunder:-

NEUTRAL CITATION C/SCA/2995/2021 CAV JUDGMENT DATED: 09/05/2024 undefined 52.8 In dealing with questions of proportionality of sentences, capital punishment is considered to be different in kind and degree from sentence of imprisonment. The result is that while there are several instances when capital punishment has been considered to be disproportionate to the offence committed, there are very few and rare cases of sentences of imprisonment being held disproportionate."

309. Considering the circumstances which guided the legislation in providing for grave punishment of death in the offence of kidnapping and abduction for ransom, the need to bring Section 364A IPC because of the increasing incidents of kidnapping and abduction for ransom, it was held therein that the concern shown by the Parliament for the safety and security of the citizens and the unity, sovereignty and integrity of the country, the punishment prescribed for those committing any act contrary to Section 364A cannot be dubbed as so outrageously disproportionate to the nature of the offence as to call for the same being declared unconstitutional.

310. In Raju Jagdish Paswan82, the Apex Court has observed that in the line of decisions ranging from Herman Solem v. Jerry Buckley Helm83, Harmelin v. Michigan87 of US Supreme Court and Vikram Singh81, the proportionality review is Page 377 of 417 Downloaded on : Mon May 13 20:36:50 IST 2024 NEUTRAL CITATION C/SCA/2995/2021 CAV JUDGMENT DATED: 09/05/2024 undefined applicable to the cases involving death sentence on the principle that punishment must be proportionate to the nature and gravity of offence. The legislative supremacy in the sentencing policy is based on the principle of separation of power in a parliamentary democracy like ours, where the legislature are meant to cater to the societal demands and meet the challenges of the time. The presumption attached to the law enacted by Parliament or State Legislature within their respective legislative field specified under the Constitution is that the legislature is presumed to be supremely wise and aware of such needs and challenges. The means for redressing a mischief are also in the realm of legislation and so long as those means are not violative of the constitutional provisions or the fundamental rights of the citizens, the Courts will show deference towards them.

311. We may also take note of the view expressed by the Constitution Bench of the Apex Court in State of Madras vs V.G. Row86 : -

312. From the above discussion, it can be seen that the Courts have set a very high bar for what constitutes "cruel and unusual punishment". This well settled principle is that the Court should be careful not to stigmatise every sentence alleged as disproportionate or excessive as unconstitutional. The sentencing policy of the State is guided by various penalogical theory and consideration of objective factors to prescribe a sentence for criminal offence are guided by the societal conditions that are prevailing at the time, Page 379 of 417 Downloaded on : Mon May 13 20:36:50 IST 2024 NEUTRAL CITATION C/SCA/2995/2021 CAV JUDGMENT DATED: 09/05/2024 undefined the extent and urgency of the evil sought to be remedied thereby. From the statement of objects and reasons of bringing the Land Grabbing Act, as noted hereinbefore, it can be seen that punishment was proposed for offences in connection with land grabbing as a deterrence, for effectively implementing the Act. The Act aims to prohibit lawlessness on account of illegal claims over the other owner's property, whether the owner be Government or a private individual. Deprivation of a private individual from the land or property of his ownership though fall in the category of offences against property, but such act results in causing not only mental injury to the owner, results in deprivation of his livelihood, social status, right to augment his income etc. and, thus, his right to live with dignity. The fact that a land owner has been deprived of his right to occupy and use his property or land, which is elevated to the level of a human right under Article 300A of the Constitution of India, though can be pressed against State or its instrumentality, but it cannot be ignored by us while dealing with the submissions of the learned counsel for the petitioners on the proportionality of the sentence of 10 years Page 380 of 417 Downloaded on : Mon May 13 20:36:50 IST 2024 NEUTRAL CITATION C/SCA/2995/2021 CAV JUDGMENT DATED: 09/05/2024 undefined imprisonment.

313. The assertion of the learned Counsel for the petitioners that similar punishment has been provided to different classes of offenders, such as an offender occupying a small piece of land and a land mafia and, thus, they have been put on the same pedestal, does not impress us, inasmuch as, the offence is "land grabbing", which results in deprivation of a person of the land or property of his ownership. The area or location of the "grabbed land", within the meaning of Section 2(e) would not make any distinction in the nature of offence. There cannot be distinction between the "land grabber", who has occupied a small piece of land illegally and a "land mafia" who has occupied a large tract of land illegally. Both of them would fall within the meaning of "land grabber"

314. It is settled that a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances. Moreover, any such interpretation of distincting while testing Page 381 of 417 Downloaded on : Mon May 13 20:36:50 IST 2024 NEUTRAL CITATION C/SCA/2995/2021 CAV JUDGMENT DATED: 09/05/2024 undefined the validity of statutory provision would result in absurdity and has to be avoided as such.

315. In conclusion, it may be said that the Parliament and the legislature, composed as they are the representative of the people, are supposed to know and be aware of the need of the people and what is good and bad for them. The Court cannot sit in judgement over their wisdom.

316. In view of the above discussion, the challenge to the validity of Section 4(5) and Section 5 of the Land Grabbing Act' 2020 providing for a minimum sentence of imprisonment of 10 years for the offence of "land grabbing" cannot be said to suffer from the vice of constitutionality on the principle of proportionality and usurpation of power.

Part IV - Mens rea and Retrospesctivity - violation of Article 20 of the Constitution :-

317. It was argued by Mr. Barot that there is a complete absence of mens rea in imposing liability for the act of land grabbing. Mens rea is clearly and by necessary implication has been excluded from the meaning of the words "activity of land grabbing" assigned in Page 382 of 417 Downloaded on : Mon May 13 20:36:50 IST 2024 NEUTRAL CITATION C/SCA/2995/2021 CAV JUDGMENT DATED: 09/05/2024 undefined Section 2(e) and the word "land grabber" under Section 2(d) , when it speaks of inclusion of successors in interest in the definition. It was urged that a person who has succeeded any piece of land alleged to be "grabbed land", cannot be held liable for the criminal act, if any, done by his predecessor. There can be no vicarious liability as criminal liability cannot pass on or inherited. Successors would be guilty in absence of mens rea from a combined reading of Section 2(d) and Section 4(2) , which includes, any person who continues to be in occupation on or after commencement of the Act' 2020.

318. It was contended that the actual act of land grabbing may have happened prior to the enforcement of the Act, but the person in occupation on or after the commencement of the Act has been included in the Act as alleged "land grabber. The commission of criminal act has a relation with the date of the incident and the question as to whether any act committed by anyone would fall within the purview of the criminal offence has to be determined with reference to the date of the incident. "Land Grabbing" was never an offence prior to 29.08.2020. Any person who occupied the alleged "grabbed land" prior to Page 383 of 417 Downloaded on : Mon May 13 20:36:50 IST 2024 NEUTRAL CITATION C/SCA/2995/2021 CAV JUDGMENT DATED: 09/05/2024 undefined the commencement of the Act' 2020, cannot be held to be a "land grabber" by giving retrospective effect to the definition of "land grabber" under Section 2(d) .

319. The judgment of the Apex Court in the State Of Maharashtra vs Mayer Hans George90 has been placed before us to urge that mens rea is an essential ingredient of a criminal offence and a master is not vicariously liable in the absence of mens rea, for offences committed by his servant and as such, cannot be held guilty of the offence in absence of their knowledge. The contention is that the said principle has to be applied while interpreting the scope of Section 2(d) of the Act' 2020. Moreover, the Act while prescribing criminal offence by excluding mens rea itself, is arbitrary.

320. Reference has further been made to the decision in Brend v. Wood91 and Judgment in Religare Finvest Ltd. vs. State of NCT of Delhi92 to submit that the penal provision must be strictly construed and no vicarious liability in criminal law can be perceived unless the statute takes that also within its fold.

[1966 ( 1) SCR 123] State Of Maharashtra vs Mayer Hans George 91 [(1946) 110 J.P. 317] Brend v. Wood 92 [Criminal Appeal No. 2242 of 2023] Religare Finvest Ltd. vs. State of NCT of Delhi Page 384 of 417 Downloaded on : Mon May 13 20:36:50 IST 2024 NEUTRAL CITATION C/SCA/2995/2021 CAV JUDGMENT DATED: 09/05/2024 undefined

321. The decision of the Apex Court in M.Abbas Haji vs. T.N. Channakeshava93 has been placed to submit that legal heirs cannot be held guilty of any offence and cannot be prosecuted for criminal offence. Reference has been made to the decision of the Apex Court in Ravula Hariprasada Rao vs. State [1951 SCC 241] to submit that it is utmost important for the protection of liberty of a person that the Court should always bear in mind that, unless the statute, either clearly or by necessary implication, rules out mens rea as a constituent part of a crime, a defendant should not be found guilty of an offence of criminal law unless he got a guilty mind.

(Ref : Brend vs. Wood91)

322. Mr. Kamal B. Trivedi, learned Advocate General, in rebuttal, would submit that mens rea is an essential ingredient of Section 4(2) and the same is expressly included within the scope of the said provision, with the use of expression "grabbed land", which is otherwise referred to Section 2(e) defining the term "land grabbing". Section 4(2) does not exclude mens rea with respect to successor-in- interest for the expression used in Section 4(2) that "a person continues to be in 93 [(2019) 9 SCC 606] M.Abbas Haji vs. T.N. Channakeshava Page 385 of 417 Downloaded on : Mon May 13 20:36:50 IST 2024 NEUTRAL CITATION C/SCA/2995/2021 CAV JUDGMENT DATED: 09/05/2024 undefined occupation of grabbed land" shall be guilty of an offence under the Act. Meaning thereby, the ingredients of Section 2(e) have to be satisfied for invocation of Section 4(2) of the Act' 2020. Therefore, mere possession is not sufficient to impose liability on such successor in interest, but the ingredients relating to continuous possession without lawful entitlement and with a view to illegally deal with the land by sale, illegal construction or illegal tenancies, etc. are required to be established. The decision of the Apex Court in Konda Laxmana Bapuji61 has been placed before us to draw our attention to paragraphs '37 to 39', which have been extracted in the foregoing part of this judgment.

323. The intention of illegally taking possession of such land or entering into anybody's land for any of the purposes mentioned in Section 2(e) of the Act' 2020, must be averred and proved by the prosecution to hold such person as guilty of commission of criminal offence of "land grabbing". It is further argued that the expression "with or without use of force, threat, etc." used in Section 2(e) provides as to how and in what manner any activity can be considered or termed as "land grabbing". The Page 386 of 417 Downloaded on : Mon May 13 20:36:50 IST 2024 NEUTRAL CITATION C/SCA/2995/2021 CAV JUDGMENT DATED: 09/05/2024 undefined submission is that a combined reading of the aforesaid provisions would show that if a land has been grabbed over which the occupant has no title, ownership or possession, by lawful entitlement, with or without usage of force, threat, deceit, etc. and with a view to deal with the land by sale etc., such an act would be the offence of "land grabbing" and such land would be "grabbed land".

324. Before dealing with the submission pertaining to mens rea, we may also take note of the contentions of the petitioners that the land grabbing has been made an offence with retrospective effect. The argument is that Section 4(2) , which says that any person who on or after the commencement of the Act' 2020 continues to be in occupation of a grabbed land belonging to others, shall be guilty of an offence under the Act.

325. Section 9(1) empowers the Special Court to take suo motu cognizance or to take cognizance on an application filed by any person to try the cases arising out of any alleged act of land grabbing with respect to the grabbed land, whether before or after the commencement of the Act' 2020. Section 17 makes transactions which has taken place whether Page 387 of 417 Downloaded on : Mon May 13 20:36:50 IST 2024 NEUTRAL CITATION C/SCA/2995/2021 CAV JUDGMENT DATED: 09/05/2024 undefined before or after the commencement of the Act, in contravention of the Land Grabbing Act, null and void, except to the extent ordered by the Special Court. The expressions "on or after the commencement of this Act" [ Section 4(2) ]; "whether before or after the commencement of this Act" [ Section 9(1) ] and Section 17 ; have the effect of imposing criminal liability for the alleged continuing wrong. It was urged that the expression "on or after the commencement of the Act" or "whether before or after the commencement of this Act"

326. Reference has been made to the US Supreme Court decision in Calder vs. Bull94 to submit that ex-post facto clause cannot be upheld, meaning thereby laws made to punish actions done before the existence of such laws, and which have not been declared crimes by preceding laws, are unjust, oppressive and 94 [3 US 386 (1798)] Calder vs. Bull Page 388 of 417 Downloaded on : Mon May 13 20:36:50 IST 2024 NEUTRAL CITATION C/SCA/2995/2021 CAV JUDGMENT DATED: 09/05/2024 undefined inconsistent with the fundamental principles of a free Government.

327. Reference has been made to paragraph 342 of the judgment in M Siddiq vs Mahant Suresh Das95 , famously known as " Ram Janmabhumi Temple " case to submit that possessory title is a wrong once committed. Continuing wrong contemplate continuing source of injury, act liable to the continuing injury. An act of "land grabbing" is complete on the date of actionable wrong and it is one time wrong. Meaning thereby, in the case of "land grabbing", offence is said to have been committed once and for all, when the land is grabbed. It is contended that continuing in possession, in itself, is not an offence. The submission is that the Land Grabbing Act by making ex-post facto laws to provide for criminal liability for the past act, which was not a criminal offence prior to its enforcement, is hit by Article 20 of the Constitution of India.

328. Mr. Kamal B. Trivedi, learned Advocate General in rebuttal would submit that Section 4(2) is not retrospective in nature. It does not seek to punish an act of taking illegal possession 95 [2020 (1) SCC 1] M Siddiq vs Mahant Suresh Das Page 389 of 417 Downloaded on : Mon May 13 20:36:50 IST 2024 NEUTRAL CITATION C/SCA/2995/2021 CAV JUDGMENT DATED: 09/05/2024 undefined committed prior to 29.08.2020, the date of the enactment of the Act' 2020. All that it does is, to punish an act of land grabbing, i.e. factum of possession of "grabbed land" found on or after coming into the force of the Act' 2020 on 29.08.2020. Reference has been made to the decision of the Bombay High Court in Syedna Taher Saifuddin vs. Tyebbhai Mossaji Koicha96 and Mohanlal v. State of Rajasthan97 .

329. It was submitted that the Act has a prospective effect, inasmuch as, it has been applied to a set of circumstances which prevailed after the Act' 2020 came into force. The operation of the statute is confined to persons who can be termed to be a "land grabber" within the meaning of Section 2(e) , after the Act' 2020 has been passed. With the passing of the Act, the legislature only intended to deal with the acts of land grabbing which took place after the passing of the Act' 2020 and it did not wish to interfere with the rights, which had accrued or liabilities which had been incurred prior to the passing of this Act. It was submitted that in the instant case, Article 20(1) would have no application. The act of possession 96 [ AIR 1953 Bombay 183] Syedna Taher Saifuddin vs. Tyebbhai Mossaji Koicha 97 [(2015) 6 SCC 222] Mohanlal v. State of Rajasthan Page 390 of 417 Downloaded on : Mon May 13 20:36:50 IST 2024 NEUTRAL CITATION C/SCA/2995/2021 CAV JUDGMENT DATED: 09/05/2024 undefined has no with retrospective effect. No offence is created under Section 4 of the Act' 2020 with retrospective effect. What is punishable is possession of land without any lawful entitlement thereto on or after 29.08.2020, when the statute was enacted creating the offence of land grabbing. The result is that if a person is in the possession of the "grabbed land" on the date when the Act' 2020 was enforced, he would commit the offence, for on the said date he would have both the "corpus" and "animus", necessary in law". The Statute cannot be said to be retrospective because a part of the requisites for its actions is drawn from a time antecedent to its passing.

330. Dealing with these submissions of the learned counsels for the parties, when we have gone through the offending provisions of the enactment, namely Land Grabbing Act, 2020 as placed the learned counsel for the petitioners, it may be noted that the expression "continues to be in occupation"

331. The person in possession of a "grabbed land"

332. We may, at this juncture, refer to the decision of the Apex Court in Rao Shiv Bahadur Singh And Another vs the State Of Vindhya Pradesh98 dealing with the import of Article 20(1) of the Constitution of India, wherein 98 [AIR 1953 SC 394] Rao Shiv Bahadur Singh And Another vs the State Of Vindhya Pradesh Page 393 of 417 Downloaded on : Mon May 13 20:36:50 IST 2024 NEUTRAL CITATION C/SCA/2995/2021 CAV JUDGMENT DATED: 09/05/2024 undefined the Constitution Bench of the Apex Court has held that what is prohibited under Section 20 is only conviction or sentence under "ex post facto law and not the trial thereof". The expression "except for violation of a law in force at the time of the commission of the Act charged as an offence" occurring in Article 20(1) when read in the context of the provisions of the Land Grabbing Act, it is evident that the Act' 2020 talks of commission of offence of land grabbing on the date of commencement of the Act' 2020, which is 29.08.2020. The words "continues to be in occupation" under Section 4(2) of the Act' 2020 has to be read and understood in the way that the act of possession of a "grabbed land"

NEUTRAL CITATION C/SCA/2995/2021 CAV JUDGMENT DATED: 09/05/2024 undefined For this there is no justification.

15. It may also be mentioned that if pecuniary resources or property acquired before the date of commencement of the Act were to be left out of account in applying subs. 3 of s. 5 it would be proper and reasonable to limit the receipt of income against which the proportion is to be considered also to the period after the Act. On the face of it this would lead to a curious and anomalous position by no means satisfactory or helpful to the accused himself. For, the income received during the years previous to the commencement of the Act may have helped in the acquisition of property after the commencement of the Act. From whatever point we look at the matter it seems to us clear that the pecuniary resources and property in the possession of the accused person or any other person on his behalf have to be taken into consideration for the purpose of sub- section 3 of section 5 , whether these were acquired before or after the Act came into force."

335. It was, thus, held therein that if pecuniary resources or property acquired before the date of commencement of the Act were to be left out of account in applying Sub-section (3) of Section, on the face of it, this would lead to a curious and anomalous position, inasmuch as, the income received during the years previous to the commencement of the Act may have helped in the acquisition of the property after the commencement of the Act. It would further amount to reading into the Page 398 of 417 Downloaded on : Mon May 13 20:36:50 IST 2024 NEUTRAL CITATION C/SCA/2995/2021 CAV JUDGMENT DATED: 09/05/2024 undefined additional words "if acquired after the date of this Act" after the word "property", for which there is no justification.

336. Taking a clue from this judgment, if we accept the contention of the petitioners that any occupant or transferee of the "grabbed land", occupied or transferred prior to the enforcement of the Land Grabbing Act, 2020 would be immune from the operation of the Act' 2020 or the offence of "land grabbing"

337. For the above discussion, it is held that retrospectivity cannot read into the Act' 2020. The Act makes the occupation of the "grabbed land", unlawful and holds a person guilty of offence of "land grabbing", who continues to be in possession of the "grabbed land" on 29.08.2020. In the similar way, the successor or any successor-in-law of any person inducted into the property who has illegally occupied someone else's property, if continues to be in occupation after the enforcement of the Gujarat Land Grabbing (Prohibition) Act, 2020 , their occupation would be of a "land grabber", of the "grabbed land", by bringing in those persons who occupied the land by illicit or illegal means and continued to occupy such land or those who stepped into the shoes of such a person and continue to occupy such lands after the commencement of the Act' 2020, knowing that Page 400 of 417 Downloaded on : Mon May 13 20:36:50 IST 2024 NEUTRAL CITATION C/SCA/2995/2021 CAV JUDGMENT DATED: 09/05/2024 undefined they do not have any right, title or interest to the land or they occupy it without any lawful entitlement thereto.

338. The law is that the nature of mens rea will be implied in a statute creating an offence depending upon the object of the Act and the provisions thereof. In the instant case, the object and purpose of the Land Grabbing Act, 2020 is to prohibit the activities of "land grabbing" by making it a criminal offence leading to imprisonment of guilty. The enactment works as a deterrence, simply sending a message that all those who have occupied someone else's land, whether owner is Government, a public body or a private person, shall have to handover the possession or vacate the "grabbed land" to restore possession to the rightful person or else they will be considered as a "land grabber" and criminal proceedings shall be initiated against them. With these, we reject the submissions of the learned counsels for the petitioners in challenging the constitutional validity of Land Grabbing Act' 2020, both on the plea of exclusion of mens rea as an essential ingredient of criminal offence and application of the Land Grabbing Act' 2020 Page 401 of 417 Downloaded on : Mon May 13 20:36:50 IST 2024 NEUTRAL CITATION C/SCA/2995/2021 CAV JUDGMENT DATED: 09/05/2024 undefined with retrospective effect, thus, violating Article 20 of the Constitution of India.

Part V - Rule 5(2) - Effect of Inclusion of the Word : "headstrong"

339. The next issue is about the provision in Rule 5(2) of the Rules' 2020, which gives power to the Collector or the State Government to take suo motu cognizance of and action in the case of Government land, where the person who has grabbed the land is a "headstrong person". It was argued that the Act does not define or assign meaning to "headstrong person" and, thus, gives unfettered power to the Committee to label anyone as a "headstrong person" and initiate action against him.

340. The decision of the Apex Court in Madhya Pradesh and Another vs Baldeo Prasad79 under the Goondas Act (noted hereinbefore) has been pressed into service to substantiate the said submission. Suffice it to note that Rule 5 prescribes for an inquiry by the Committee notified by the State Government under the Chairmanship of the District Collector, notified by the State Government, before recording information about the commission of an offence under the Land Grabbing Act, which Page 402 of 417 Downloaded on : Mon May 13 20:36:50 IST 2024 NEUTRAL CITATION C/SCA/2995/2021 CAV JUDGMENT DATED: 09/05/2024 undefined is only in the nature of a prima facie inquiry. The inquiry is purely executive function of a Committee constituted by the State Government, which comprises of Executive Officers. The Committee does not discharge any quasi-judicial or judicial function while making inquiry as contemplated under Section 12(a) of the Act' 2020, as per the procedure prescribed in Rule 5. The decision of the Committee, deciding further course of action including filing of an FIR does not attain finality. No decision making power to hold any person guilty of offence of land grabbing can be said to have been conferred by Rule 5 upon the Committee. It would, thus, result in reading too much in statute, if we consider that the Committee has been conferred unbridled or uncanalised power to term anyone as a "land grabber", for holding him guilty of the offence of "land grabbing".

341. The dictionary meaning of the words "headstrong person" means a person determined to have one's own way, willful, stubborn and obstinate. It is the fundamental principle of law of interpretation is that any word in the statute if undefined therein, has to be given its plain and simple meaning. If the words of Page 403 of 417 Downloaded on : Mon May 13 20:36:50 IST 2024 NEUTRAL CITATION C/SCA/2995/2021 CAV JUDGMENT DATED: 09/05/2024 undefined the statute are precise and unambiguous and are capable of one construction only, then it would not be open to the Courts to adopt any other hypothetical construction on the ground that such hypothetical construction is more consistent with the alleged object and policy of the Act. When the words of the statute are clear, plain or unambiguous, i.e. they are reasonably susceptible to only one meaning, the Courts are bound to give effect to that meaning irrespective of consequences. When the language is plain and unambiguous and admits of only one meaning, no question of construction of statute arises for the Act speaks for itself. An elementary Rule in the words of Viscount Simonds100 would be fruitful to take note of :-

342. Plain meaning rule applies at the stage when the words have been construed in their context and the conclusion is reached that they are susceptible to only one meaning. In that event the meaning so derived is to be given effect to irrespective of consequences for no 100 [1957 (1) ALL ER 49] Viscount Simonds Page 404 of 417 Downloaded on : Mon May 13 20:36:50 IST 2024 NEUTRAL CITATION C/SCA/2995/2021 CAV JUDGMENT DATED: 09/05/2024 undefined alternative construction is really open, subject to the qualification that the statute is constitutional and unreasonableness and that the injustice or absurdity is not of the nature and gravity, which makes the statute offend the Constitution.

- (Ref. Ajay Hasia54; Smt. Bhagwanti And Anr vs Union Of India101 ; State Of Kerala And Ors vs M/S Travancore Chemicals & Manufacturing Co. Ltd.102 ).

343. One of the guiding principles of the rule of literal construction is that the intention of the Legislature is primarily to be gathered from the language used, which means that attention should be paid to what has been said as also to what has not been said. As a consequence, a construction which requires for its support addition or substitution of words or which results in rejection of words as meaningless, has to be avoided.

344. It is settled that when the question arises as to the meaning of certain provisions in a statute, it is not only legitimate, but proper to read that provision in its context. The context means, the statute as a whole, the previous state of the law, other statutes in 101 [( 1989) 4 SCC 397] Smt. Bhagwanti And Anr vs Union Of India 102 [( 1998) 8 SCC 188] State Of Kerala And Ors vs M/S Travancore Chemicals & Manufacturing Co. Ltd .

NEUTRAL CITATION C/SCA/2995/2021 CAV JUDGMENT DATED: 09/05/2024 undefined pari materia, the general scope of the statute and the mischief that it was intended to remedy. It is a rule now fully established that the intention of the legislature must be found by reading the statute as a whole.

- [Ref: -Philips India Ltd v. Labour Court103 ; Osmania University Teachers Association v. State of Andhra Pradesh104 ; Captain Subhash Kumar v. The Principal Officer, Mercantile Marine Dept.105 ]

345. Applying the above noted basic principles of reading of a statute to find the intention of the legislature, applying the rule of literal construction, if the language of Rule 5(2) is read by giving literal or dictionary meaning to the words "headstrong person", it can be seen and understood that in case a stubborn man, habitual of occupying Government land willfully, if he occupies Government land, the Collector or the State Government are empowered to take suo motu cognizance and action to initiate inquiry in accordance with Sub-rules (3) to (10) of Rule 5, in order to lodge a complaint of "land grabbing" by filing a First Information Report on conclusion of such inquiry, in the same way as is to be 103 [ AIR 1985 SC 1034] Philips India Ltd v. Labour Court 104 [ AIR 1987 SC 2034] Osmania University Teachers Association v. State of Andhra Pradesh 105 [AIR 1991 SC 1632] Captain Subhash Kumar v. The Principal Officer, Mercantile Marine Dept. Page 406 of 417 Downloaded on : Mon May 13 20:36:50 IST 2024 NEUTRAL CITATION C/SCA/2995/2021 CAV JUDGMENT DATED: 09/05/2024 undefined concluded on the application of a complaint.

346. Meaning thereby, the Prant Officer or the Officer to whom such matter is referred after taking cognizance or action shall be required to collect the details and furnish the report about the nature of occupation by such a person of the Government land. On receipt of the inquiry report, the Committee defined in Section 2(a) may draw a prima facie conclusion of commission of the act of "land grabbing"

347. We may draw support from the decisions of the Apex Court in Benilal vs. State of Maharashtra106 and State Of Punjab vs Gurmit Singh107 wherein it is recognised that the legislative scheme may employ words of generality conveying its policy and intention 106 [1995 Supp (1) SCC 235] Benilal vs. State of Maharashtra 107 [2014 (9) SCC 632] State Of Punjab vs Gurmit Singh Page 407 of 417 Downloaded on : Mon May 13 20:36:50 IST 2024 NEUTRAL CITATION C/SCA/2995/2021 CAV JUDGMENT DATED: 09/05/2024 undefined to achieve the object setout therein. It was observed that every word need not be defined. It may be a matter of judicial construction of such words or phrases. Mere fact that a particular word or phrase has not been defined is not a ground to declare the provisions of the Act itself or the order as unconstitutional. It is well settled that when the words of the statute are not defined, it is to be understood in their natural ordinary or popular sense. For this purpose, it shall be permissible to refer to dictionary meaning to find out the general sense in which the word is understood in common parlance.

348. In view of the above, submissions of the learned counsels for the petitioners about the validity of Rule 5(2) of the Rules' 2020 providing for the procedure of inquiry into the complaint of "land grabbing" are liable to be turned down.

Part VI - Pari Materia Enactment of other States:-

349. Before concluding, we may also take note of the stand of the State to uphold the constitutional validity of the Gujarat Land Grabbing (Prohibition) Act, 2020 on the ground that the Apex Court while interpreting the Page 408 of 417 Downloaded on : Mon May 13 20:36:50 IST 2024 NEUTRAL CITATION C/SCA/2995/2021 CAV JUDGMENT DATED: 09/05/2024 undefined paria materia provisions of the Andhra Pradesh Land Grabbing (Prohibition) Act, 1982 , has interpreted them in the manner that no unconstitutionality or ambiguity can be seen or demonstrated. The respondent State relies on the two decisions of the High Court of Karnataka in Shriram Properties Pvt. Ltd. Vs. State of Karnataka108 . The High Court of Karnataka has upheld the constitutional validity of the Karnataka Land Grabbing Prohibition Act, 2011 , which contains pari materia provision to the Gujarat Land Grabbing (Prohibition) Act, 2020 .

350. Reference has also been made to the decision of the Division Bench of the Gauhati High Court in details of the judgment upholding certain provisions of the Assam Land Grabbing (Prohibition) Act, 2010 , viz. Section 10(2) , which conferred jurisdiction on the Special Tribunal to try and dispose of the civil liability at first and decide and pass order as to the title, ownership and lawful possession of the grabbed land "whether before or after the commencement of this Act", as it deems fit. It provides that after completion of the civil proceedings, if the Special 108 [Writ Petition No.47747/2017 decided on 19.01.2021] Shriram Properties Pvt. Ltd. Vs. State of Karnataka Page 409 of 417 Downloaded on : Mon May 13 20:36:50 IST 2024 NEUTRAL CITATION C/SCA/2995/2021 CAV JUDGMENT DATED: 09/05/2024 undefined Tribunal decides and pass order that the land in question has been grabbed, the Special Tribunal may order that the possession of the land be restored to the person whose land has been grabbed after evicting the land grabber or any other person who may be in possession of the land, if necessary by use of such force as may be required for the purpose.

351. It has been held by the Assam High Court that the main object of the Assam Land Grabbing (Prohibition) Act, 2010 is to protect the owner and possessor of the land from unlawful land grabbing and to punish the criminal "land grabbers". The Assam Land Grabbing Act seeks to prohibit and punish "land grabbing", which became a menace in the State. It was held that if the alleged land grabber claims or puts up a defence to a proprietary right or ownership or possesory right over the land in question, then the civil liability would be adjudicated first and if he fails to establish any such right, then criminal proceeding for prosecution of the land grabber would recommence. As per the Scheme of the 2010 Assam Act , upon cognizance being taken of the criminal offence of "land grabbing", the Special Tribunal would proceed with the Page 410 of 417 Downloaded on : Mon May 13 20:36:50 IST 2024 NEUTRAL CITATION C/SCA/2995/2021 CAV JUDGMENT DATED: 09/05/2024 undefined prosecution of the "land grabber", not only for the purpose of punishment, but also to recover the "grabbed land" from the "land grabber" for restoring the possession of the "grabbed land" to the person from whom the land was grabbed. If in the Civil proceeding, the alleged land grabber takes up the defence of ownership, possession or better claim over the land in question, the Special Tribunal shall first determine that question and keep criminal trial in abeyance till the determination. However, the principal object of the Act' 2010 is not of adjudicating right, title or possession over the land in question. It is for facilitating a smooth criminal trial with the defence of a better right, title or interest or possession over the land in question, if taken, would be taken up and determined first. However, the legislature did not intend to prohibit the proceedings of the criminal trial of a person alleged to have committed the offence of land grabbing. This is so that when a person is prosecuted as a "land grabber", if he takes up the plea of better claim over the land in question as his defence, it would require adjudication as to whether such a person can be held to be a "land grabber" having no right, title or Page 411 of 417 Downloaded on : Mon May 13 20:36:50 IST 2024 NEUTRAL CITATION C/SCA/2995/2021 CAV JUDGMENT DATED: 09/05/2024 undefined interest in the land in question, occupying or possessing the same without any lawful entitlement thereof.

Part VII - Conclusion : Operative Portion :-

352. With the above threadbare discussion on each and every aspect of inquiry into the matter of considering the validity of the Gujarat Land Grabbing (Prohibition) Act, 2020 , on the issues raised by the learned counsels for the parties, we do not find any good ground to hold the Gujarat Land Grabbing (Prohibition) Act 2020, and the Rules' 2020 made thereunder, as unconstitutional or violative of Articles 13 , 14 , 19 , 20 and 21 of the Constitution of India.

353. In the conclusion, our answer to the points of challenge raised before us, is as under:-

(iii) The Land Grabbing Act' 2020 cannot be said to be violative of the basic structure of the Constitution of India. It's provisions do not violate Article 14 of the Constitution and the procedure of Civil and Criminal trials provided in the Page 413 of 417 Downloaded on : Mon May 13 20:36:50 IST 2024 NEUTRAL CITATION C/SCA/2995/2021 CAV JUDGMENT DATED: 09/05/2024 undefined impugned legislation cannot be said to be manifestly arbitrary.

(iv) Testing the validity of the Land Grabbing Act' 2020 on the doctrine of proportionality for providing minimum sentence of imprisonment of 10 years for the offence of land grabbing, it is concluded that the wisdom of the legislature is to be given due credence. It is for the legislature being the representative of the people to decide as to what is good and bad for them as it is supposed to know and be aware of the needs of the people. The Court cannot sit in judgment over its wisdom.

Consequently, the Act' 2020 cannot be said to be ultra vires Articles 13 , 14 , 19 and 21 of the Constitution of India on the doctrine of proportionality and cannot be invalidated on the plea of the prescribed punishment being harsh, disproportionate and manifestly arbitrary.

(v) The plea to challenge the validity of the Act' 2020 on the ground of absence of mens rea and its retrospective application and, thus, being hit by Page 414 of 417 Downloaded on : Mon May 13 20:36:50 IST 2024 NEUTRAL CITATION C/SCA/2995/2021 CAV JUDGMENT DATED: 09/05/2024 undefined Article 20 of the Constitution of India, is found to be without any substance.

(vi) The challenge to the validity of the Rules' 2020 made under the Land Grabbing Act, 2020 is found to be untenable for the discussion made in the foregoing paragraphs of the judgment.

(vii) On a comparative reading of the Gujarat Act ' 2020 with the pari materia legislations enacted by the State of Assam, Karnataka and Andhra Pradesh, we find that the validity of the pari materia provisions have been upheld by the Karnataka High Court and Assam High Court in the challenge to the enactments made by the State Legislatures therein. The only distinction pointed out was about the requirement of the Presidential assent, which has been dealt with by us.

(viii) On other ancillary points of interpretation of Sections 7 , 9 , 11 and 15 of the Land Grabbing Act, 2020, in view of the discussion made hereinbefore, no inconsistency or arbitrariness could be found by us so as to declare the Gujarat Land Grabbing (Prohibition) Act ' 2020 having been framed in arbitrary exercise of power or the provisions of the Act' Page 415 of 417 Downloaded on : Mon May 13 20:36:50 IST 2024 NEUTRAL CITATION C/SCA/2995/2021 CAV JUDGMENT DATED: 09/05/2024 undefined 2020 and the Rules' 2020 made thereunder being without any guidance by the legislature.

354. Consequently, all the writ petitions in this group, deserve to be dismissed being devoid of merits and are accordingly, dismissed. No order as to costs.

All the pending Civil Applications connected with the concerned writ petitions would not survive and shall stand dismissed accordingly.

(SUNITA AGARWAL, CJ) (ANIRUDDHA P. MAYEE, J.) BIJOY B. PILLAI/SUDHIR ACHUTAN FURTHER ORDER After pronouncement of the judgment, a request has been made by the learned counsels appearing for the petitioners to extend the interim order already granted in individual cases uptill 30.07.2024 from today, which is hereby turned down for the simple reason that at the beginning of the arguments, it was agreed that the Court will examine only on the Page 416 of 417 Downloaded on : Mon May 13 20:36:50 IST 2024 NEUTRAL CITATION C/SCA/2995/2021 CAV JUDGMENT DATED: 09/05/2024 undefined validity of the legislation and the merits of the individual cases will not be looked into. Without examining the merits of the individual cases, it is not possible for tus to grant any interim order for a further period.

As regards the contention of the learned counsels for the petitioners that in some of the matters, they have challenged the orders passed by the Inquiry Committee on merits and they may be permitted to raise the challenge by filing fresh petitions, we clarify that the dismissal of the writ petitions in this bunch being confined to the validity of the Land Grabbing (Prohibition) Act, 2020 , will not come in the way of the petitioners in filing fresh petitions raising individual challenges to the action of the statutory committee during the course of inquiry or the action of the Committee in lodging F.I.R, in appropriate cases.

(SUNITA AGARWAL, CJ) (ANIRUDDHA P. MAYEE, J.) Page 417 of 417 Downloaded on : Mon May 13 20:36:50 IST 2024