February 13, 2021 12:26:58 am
Two residents of Sabarkantha have challenged the constitutional validity of the provisions of the Gujarat Land Grabbing (Prohibition) Act 2020, and Rules, especially the provision that provides limitless powers to special courts as well as the one that permits the retrospective application of offence, in the Gujarat High Court.
The petition moved by Kamlesh Dave and Pankajkumar Patel, who are also facing prosecution under the Act, is expected to be heard on February 18.
The petition has challenged the enactment and enforcement of the Act, in the “absence of legislative competence” saying the subject matter being civil and criminal in nature, it falls under the concurrent list in the Constitution of India that has to be considered by both the union and state governments, and hence requires presidential approval.
The petition submitted that the provisions of the law are not just “arbitrary, unreasonable, vague and repugnant to provisions of the Code of Criminal Procedure (CrPC), 1973, as well as to the Code of Civil Procedure (CPC), 1908” but also violative of Article 14 of the Constitution, which guarantees equality before the law, and Article 20 that guarantees that no person shall be convicted of any offence except for violation of the law in force at the time of the commission of the act charged as an offence.
The latter assertion is based on the fact that section 4(2) of the Act creates continuous occupation over the said land as a new offence in itself.
The provisions of the Act and the Rules also trench upon the powers of the High Court under provisions of the CPC, 1973, concerning appointment of judges, which is otherwise an exclusive domain of the High Court, the petitioners submitted through their advocates Maulik Shah and Virat Popat.
According to the provisions of the Act, the state government may, with the concurrence of the Chief Justice of the High Court of Gujarat, constitute one or more special courts as well as appoint judges to these courts. If a question arises on the jurisdiction of the special courts, it states that “it shall be referred to the state government, whose decision in the matter shall be final”, with no clarity on what constitutes “jurisdiction” in the clause.
The petition also highlighted that the powers given to special court is “excessive” as the order of a special court constituted for adjudicating Land Grabbing Act-related cases “can nullify the decree by the competent court and even in absence of hearing to a party the order of special court shall be binding”, the petition states.
The petitioners have also questioned the decision taken by the committee, empowered by the Act, to prosecute them and file an FIR against them for a transaction that took place in 1972.
As per petitioner Kamlesh Dave, a sale deed was executed between the original complainant and his ascendants in 1972 over the disputed plot of land. In 2007, a registered sale deed was executed with Pankajkumar Patel, when Dave sold the plot to him.
The petitioners have sought that the provisions of the Act be held as ultra vires to the constitutional guarantees as well as to quash and set aside the proceedings initiated against the petitioner.
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