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2024 Supreme(Guj) 483
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SUNITA AGARWAL, ANIRUDDHA P. MAYEE, JJ.
Kamlesh Jivanlal Dave and Another – Petitioners
Versus
State of Gujarat and Others – Respondents
Special Civil Application No. 2995 of 2021, Special Civil Application Nos. 57, 65, 79, 211, 214, 238, 351 of 2022, Special Criminal Application Nos. 32, 47, 50, 55, 64, 65, 156, 200, 205, 265, 283 of 2022, Criminal Misc. Application (For Joining Party) No. 1 of 2022, Criminal Misc. Application (For Vacating Interim Relief) No. 1 of 2023
Decided On : 09-05-2024
Advocate Appeared:
For the Petitioners: Asim Pandya, Gaurav Vyas, Megha Jani, Arjun Joshi, Mit S. Thakkar, Aditi Sheth, Krisha Bhimani, Virat Popat, Tejas M. Barot, Rhea Chokshi, Maulik Shah, Masoom Shah, Rasesh Parikh, Vishwas Shah, Vikram Thakore, Vikas Nair, A.V. Nair, Jigar Gadhvi, M.M. Saiyed.
For the Respondents: Kamal Trivedi, Manisha Lavkumar, Mitesh Amin, Vinay Vishen, Ankita Rajput.
Legal Category Hierarchy
-
constitutional law
-
presidential assent and repugnancy
- article 254 repugnancy
- pith and substance doctrine
- incidental trenching
- seventh schedule interpretation
-
article 14 equality and arbitrariness
- manifest arbitrariness
- classification and nexus
- mischief rule
-
article 20 mens rea and retrospectivity
- mens rea exclusion
- retrospective effect
-
article 21 proportionality
- minimum mandatory sentence
- legislative supremacy in sentencing
- separation of powers
-
presidential assent and repugnancy
-
criminal law
-
offences and punishment
- land grabbing offence
- burden of proof
-
criminal procedure
- special courts jurisdiction
- code of criminal procedure applicability
-
offences and punishment
-
civil procedure
-
special courts and jurisdiction
- section 9 civil and criminal proceedings
- code of civil procedure
- code of criminal procedure
-
special courts and jurisdiction
-
administrative law
-
delegation of power and rules
- rule 5 inquiry procedure
- committee constitution
-
delegation of power and rules
JUDGMENT :
SUNITA AGARWAL, J.
1. For the convenience of readers, the judgment is divided into parts as indicated in the table of contents, given herein-below:
| Table of Contents | |
| S. No. | Subject |
| 1 | Preface |
| 2 | Topics - Issues of Challenge |
| Part (I) | Presidential Assent and Repugnancy - Article 254 of the Constitution of India |
| (A) Arguments of the learned counsels for the parties | |
| (B) Topics of Analysis | |
| (a) Scope and interpretation of entries in the Seventh Schedule | |
| (b) Pith and substance of The Gujarat Land Grabbing (Prohibition) Act, 2020 | |
| (c) Repugnancy and Presidential Assent | |
| (d) Incidental Trenching | |
| (e) Dealing with the arguments of the learned counsels on the apparent conflict of different provisions of the Gujarat Land Grabbing (Prohibition) Act, 2020 with Central laws: | |
| (i) Conflict with the Civil Criminal Procedure Code | |
| (ii) Effect of Section 15 of the Act 2020 | |
| (iii) Contradictions shown with The Specific Relief, The Limitation Act and The Transfer of Property Act | |
| (C) Conclusion on Repugnancy and Presidential Assent | |
| Part (II) | Manifest Arbitrariness - violation of Article 14 of the Constitution: |
| (A) Arguments of the learned counsels for the parties: | |
| (a) Mischief Rule | |
| (b) Manifest Arbitrariness in the provisions of the Land Grabbing Act 2020 and the Rules made thereunder | |
| (B) Analysis: | |
| (a) General Principles of testing the constitutionality of an Enactment | |
| (b) Analysing the Statement of Objects and reasons of the Act 2020 | |
| (c) Dealing with the plea of violation of Article 14 by treating un-equals as equals | |
| (d) Taking aid of the decisions of the Apex Court pertaining to Andhra Pradesh Land Grabbing Act, 1982 | |
| (C) Conclusion: | |
| Reverting to the Land Grabbing Act, 2020: | |
| (a) Object and purpose of Act 2020, Scope of jurisdiction of Special Court | |
| (b) Reverse burden | |
| (c) Section 7(2) - Dispute re-jurisdiction of Special Courts | |
| (d) Section 9 of the Act 2020 - unguided and unbridled power to Special Courts | |
| (e) Section 12(a) - Re-Constitution of the Committee | |
| (f) Rule 5 of Rules 2020 - Re-Procedure of inquiry into the complaints | |
| Part (III) | Doctrine of proportionality and Validity of Mandatory Minimum Sentence: |
| (A) Arguments of the learned counsels: | |
| (a) Law of Proportionality | |
| (b) Usurpation of power by Legislature in providing sentencing policy | |
| (c) Vesting of discretion in authorities | |
| (d) Unbridled and untrammeled discretion leads to arbitrariness | |
| (B) Analysis and Conclusion: | |
| (a) Proportionality doctrine and test of reasonableness | |
| (b) Proportionality and sentencing under criminal law | |
| (c) Legislative supremacy and power of Judicial review | |
| Part (IV) | Mens rea and retrospectivity - violation of Article 20 of the Constitution |
| Part (V) | Rule 5(2) - Effect of inclusion of the word: “headstrong” |
| Part (VI) | Pari materia Enactment of other States |
| Part (VII) | Conclusion: Operative Portion |
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 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 Grab
