Gujarat High Court
Kortyarknagar Co-Operative ... vs State Of Gujarat on 21 December, 2022
Bench: Biren Vaishnav
C/SCA/4598/2022 ORDER DATED: 21/12/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 4598 of 2022
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KORTYARKNAGAR CO-OPERATIVE HOUSING SOCIETY LIMITED
THROUGH VIJAYBHAI KANTILAL PAREKH
Versus
STATE OF GUJARAT
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Appearance:
MR PK JANI, SR COUNSEL assisted by SHIVANG P JANI(8285) for the
Petitioner(s) No. 1,10,11,12,13,14,15,16,17,18,19,2,20,21,3,4,5,6,7,8,9
MR ROHAN SHAH, AGP for the Respondent(s) No. 1,2,3,4
MR MIHIR THAKORE, SR COUNSEL assisted by MR AB MUNSHI(1238) for
the Respondent(s) No. 10,11,12,13,5,6,7,8,9
NOTICE SERVED BY DS for the Respondent(s) No. 14
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CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV
Date : 21/12/2022
ORAL ORDER
1. Heard learned advocates for the respective parties.
Perused the record.
2. By way of this petition, under Article 226 of the
Constitution of India, the petitioners have challenged the
order dated 5.1.2022 passed by the Secretary (Appeals),
Revenue Department. By this order, the respondent No.2
has restored the permission granted to the respondent
Nos.5 to 8 to sell the property in question to the
C/SCA/4598/2022 ORDER DATED: 21/12/2022
respondent Nos.9 to 14. The order by which permission
was so granted was dated 22.6.2020.
3. The facts in brief would read as under:
3.1. The respondent Nos.5 to 8 owned land bearing
regular city survey no.438 admeasuring 63 Are-74 Square
Meters, FP No.82, TP No.11, Ward No.12, Adajan, Gorat,
Surat. It is not in dispute that the land in question was in a
"disturbed area." On 25.10.2019, the respondent nos.5 to
8 entered into an agreement to sell the land in question to
a partnership firm M/s. Evergreen Corporation, to
respondent No.9. On that day, respondent nos.10 to 13
were partners of the said firm. On 16.3.2020, there was a
reconstitution of the partnership firm inasmuch as, the
respondent no.14 was inducted as a partner. On that very
date, a sale deed was executed by the respondent nos.5
to 8 in favour of the partnership firm, respondent No.9.
C/SCA/4598/2022 ORDER DATED: 21/12/2022
The sale deed is on record and respondent No.14 was a
signatory to the sale deed.
3.2. On 20.3.2020, these sellers (respondent nos.5 to
8) made an application to the competent authority i.e. the
Collector, Surat as the land in question was "a disturbed
area" u/s.5 of the Gujarat Prohibition of Transfer of
Immovable Property and Provision for Protection of
Tenants from Eviction from Premises in Disturbed Areas
Act, 1991. (for short, hereinafter referred to as "Disturbed
Areas Act")
3.3. On 22.6.2020, the Deputy Collector granted
such permission to sale the property in question subject to
certain conditions. The petitioners residential societies in
the vicinity lodged objections on 26.8.2020 before the
Collector and the Police Commissioner with regard to the
sale in question. In the meantime, the purchaser got
C/SCA/4598/2022 ORDER DATED: 21/12/2022
development permissions to develop the property and also
construction permission to execute the scheme of flats
known as Rehan Heights. On the objections filed by the
petitioners based on a report dated 8.11.2020, submitted
by the PSI to the PI and in turn to the Police Commissioner
which indicated that there was breach of condition Nos.3
and 12 of the permission dated 22.6.2020, appropriate
action be taken. The representations / objections were
rejected by the Deputy Collector rejected on 31.3.2021.
Aggrieved by which, the petitioners have filed Revision
Application No.1/2021 which is pending before the
Secretary, Revenue Department. On 9.9.2021, it appears
that pursuant to objections lodged by one Gorat Hanuman
Kshetra Samvardhak Samiti, which according to the
petitioners protest their objections, the Deputy Collector
found that in the partnership deed, one Prakash Manubhai
Dholariya was inducted as a partner which gave an
impression that the transfer of property by way of sale and
C/SCA/4598/2022 ORDER DATED: 21/12/2022
purchase was between two entities of same religion when
in fact it was not so. Initially, the partnership firm had
respondent nos.10 to 12 who belong to a different
community. These factors were not disclosed in the
application seeking permission which was therefore breach
of condition no.12 of order granting such permission and
therefore the Collector revoked such order. This order of
revocation of permission was challenged by respondent
Nos.5 to 8 before the Secretary, Appeals by filing Revision
Application No.2/2021 and after hearing the respondent
Nos.5 to 8, by the impugned order dated 5.1.2022, the
Secretary restored the permission granted on 22.6.2020
which is a subject matter of a challenge in this petition by
the residential societies in the vicinity of the land.
4. Mr. Prakash Jani, learned Senior Counsel assisted by
Mr. Shivang Jani, learned advocate for the petitioners
would make the following submissions:
C/SCA/4598/2022 ORDER DATED: 21/12/2022
4.1. Mr. Jani would submit that as is evident
from the sale deed dated 16.3.2020, the signatory
thereto was respondent no.14 - Prakash Manubhai
Dholariya was only inducted as a partner with a share
of 10% by way of reconstitution of the firm on the
same date. Initially, as per the constitution of a firm,
as per the records on 22.6.2019, the partnership firm
was registered with Maksud Askur with 50% share
(respondent No.10), Mohamad Irfan Mohamad Munir
Chamadiya with 50% share. The firm was
reconstituted by reconstitution of the share of
Maksud Askur and Mohmad Irfan to bring in the
respondent No.14 - Prakash Dholariya. The purchaser
therefore presented himself as if not being a member
of the minority community and the permission
therefore that was sought by the respondent nos.5 to
8 without full disclosure was a case of
C/SCA/4598/2022 ORDER DATED: 21/12/2022
misrepresentation. The permission therefore so
granted on 22.6.2020 and the conditions thereto
specifically condition nos.3 and 12 thereof, which
provided that if a permission is taken without proper
disclosure and on a basis of misrepresentation then it
would entail revocation. This when pointed out to the
authorities, the Deputy Collector on 9.9.2021 rightly
resorting to condition no.12 revoked the permission
so granted for the transaction in question.
4.2. Mr. Jani would further draw the attention of
the Court to the provisions of section 6 of the
Disturbed Areas Act and submit that what was
available to the respondents was a remedy of appeal
thereunder whereas, as is evident from the reading of
the impugned order dated 5.1.2022, the Secretary,
Revenue Department passed an order in an
application which was not only titled as a revision
C/SCA/4598/2022 ORDER DATED: 21/12/2022
application but also evidently from the operative part
of the order allowed the revision which was an order
without jurisdiction. It was not within the scope and
ambit of the authority to exercise powers of revision.
4.3. Mr. Jani would further submit that the
petitioners had lodged caveat before the Secretary
(Appeals) on 22.9.2021 immediately after filing of the
revision application by the respondent nos.5 to 8. On
17.11.2021, the order apparently indicates that
before passing the order the petitioners were not
given an opportunity of hearing either at an interim
stage or at a final stage. The order therefore was in
violation of principles of natural justice and, therefore
deserves to be set aside.
4.4. Mr. Jani would further submit that though,
feeling aggrieved by the order of the Deputy
C/SCA/4598/2022 ORDER DATED: 21/12/2022
Collector dated 31.3.2021 by which the objections of
the petitioners were rejected, the petitioners had
filed revision application no.1 of 2021 together with a
stay application on 19.4.2021. The same were yet to
be heard. On the applications filed by the respondent
nos.5 to 8, five months later in point of time, on
17.9.2021, the Secretary within two months after
concluding appearing on 22.11.2021 allowed the
revisions on 5.1.2022. The order was passed in hot
haste. He would submit that before the Secretary,
Appeals, apart from the revision filed by the
petitioners, several revision applications under
various revenue laws are pending which are older in
age, despite which, the State thought it fit to
expeditiously hear the present revision at the hands
of respondent Nos.5 to 8 and allowed the same.
4.5. Mr. Jani would submit that the petitioner
C/SCA/4598/2022 ORDER DATED: 21/12/2022
ought to have been joined as part respondent to the
appeals / revisions as it was in pursuance to their
objections that the order was revoked was under
challenge.
4.6. Even in the present petition, the State and
the private respondents have not filed any affidavit to
the averments, controverting the same especially
when it is specifically pointed out that on 5.1.2022,
the hearing boards in cases pertaining to Surat were
adjourned and, therefore there is no explanation as
to how on that very date, an order was passed in the
present revision.
4.7. The revocation was rightly done in view of
the fact that the application that was filed for
permission u/s.5 of the Act had no details showing
the constitution of the partnership firm which were
C/SCA/4598/2022 ORDER DATED: 21/12/2022
members of the minority committee and based on
the sale deed which was signed by a member of a
Hindu Community, the transaction was approved.
4.8. Mr. Jani would submit that it was not a case
that the petitioners have any disrespect for the
minority community, however, looking to the lifestyle
that were different in nature, objections were lodged
with the authorities, which are on record to indicate
that the sale in question would cause polarization of
persons and disturb the demo-graphical equilibrium.
He would therefore submit that in absence of the
authority having any revisional powers, not only the
order was without jurisdiction, but it was evident that
the initial permission granted on 22.6.2020 was
unsustainable and therefore cancelled on the ground
of concealment. It was a case which vitiates the
entire proceedings. The order dated 5.1.2022 would
C/SCA/4598/2022 ORDER DATED: 21/12/2022
therefore unsustainable, without authority of law, de
hors the provisions of law, in violation of principles of
natural justice and therefore deserves to be set
aside.
5. Mr. Mihir Thakore, learned Senior Counsel assisted by
Mr. A. B. Munshi, learned advocate appeared for
respondent Nos.5 to 14 and made the following
submissions:
5.1. Mr. Thakore would submit that the term
"disturbed area" is defined under the Act to mean an
area declared as disturbed area u/s.3. The term "fair
value" in relation to an immovable property is also
defined to mean such value of the property as
approximate market value of such property.
5.2. Mr. Thakore would invite the Court's
C/SCA/4598/2022 ORDER DATED: 21/12/2022
attention to the provisions of Section 3 of the Act and
submitted that the State Government, having regard
to the intensity and duration of riot or violence of
mob may declare an area to be a disturbed area for a
specified period. The notification was issued on
14.3.2020 under the Disturbed Areas Act, initially for
a period upto 31.7.2021 which has now been
extended upto 30.7.2026. The property in question is
notified as a property in such disturbed area.
5.3. Mr. Thakore would submit that reading
Sections 4 and 5 of the Act indicate that an
application has to be moved by a person intending to
transfer such property and accordingly, the
respondent nos.5 to 8 the original owners made an
application in the prescribed format u/s.5. The
Collector on receipt of such application holds an
inquiry in manner provided under the Bombay Land
C/SCA/4598/2022 ORDER DATED: 21/12/2022
Revenue Code and after giving an opportunity of
hearing to the applicant, based on evidence, either
rejects the application or grant sanction. While
considering the application, the ambit and the scope
before the competent authority is to decide whether
the proposed transfer is made by free consent of the
persons intending to transfer and for a fair value.
Having so assessed the nature of the transaction, the
orders sanctioning such permission on 22.6.2020
cannot be faulted.
5.4. Mr. Thakore would further submit that the
application has to be made by person intending to
transfer and in light of the ambit for the inquiry a
third party has no role to play in the decision making
process.
5.5. Mr. Thakore would further submit that the
C/SCA/4598/2022 ORDER DATED: 21/12/2022
Disturbed Areas Act underwent an amendment on
15.10.2020 wherein in the Principal Act in Section 5,
second substitution was made. Sub clauses (iv) and
(v) were added which indicated that while deciding
an application, the competent authorities could
consider the likelihood of polarization of persons
belonging to the community causing disturbance in
demo-graphical equilibrium of the persons belonging
to different communities which amendment has not
come into force in light of a statement made by
learned Government Pleader before the Division
Bench on 20.1.2021 in SCA No.1011 of 2021. He
would therefore submit that these aspects cannot go
into the decision making process while deciding an
application and the objections of the petitioners
therefore as third parties to the transaction cannot be
considered. The Section as it stands contemplates
nothing except adjudging the transaction in terms of
C/SCA/4598/2022 ORDER DATED: 21/12/2022
it being with free consent and for a fair value.
5.6. Mr. Thakore would further submit that on
the representations made by the petitioners the
Deputy Collector had on 31.3.2021 passed an order
rejecting the objections which is a subject matter in
appeal before the authority. Reading Sec.6 of the Act,
Mr. Thakore would submit that the petitioners could
not be persons aggrieved as an appeal would lie only
when an application u/s. 5 is rejected.
5.7. Even otherwise, according to Mr. Thakore,
the order of revoking and recalling the permission
dated 9.9.2021 was without hearing the respondents
especially the respondent nos.5 to 8. The order was
without notice to them. In the appeal filed by the
present respondents against the order of revocation,
the petitioners would have no role in appearing in the
C/SCA/4598/2022 ORDER DATED: 21/12/2022
appeal and, therefore the argument of the learned
counsel for the petitioners that the order was in gross
violation of principles of natural justice does not merit
consideration. In fact, the order of 9.9.2021 revoking
the permission could not have been passed without
hearing the party in whose favour permission was
granted.
5.8. In support of his submission that the only
scope of an inquiry u/s.5 was for the authorities to
consider the aspect of free consent and fair value, Mr.
Thakore would rely on the following decisions.
(a) SCA No.13041/2019 dated 9.3.2020 in the
case of Onali Ezazuddin Dholkawala v. State of
Gujarat
(b) SCA No.11362/2017 dated 19.6.2007 in the
case of Bharatkumar Shankarlal Somani v. State
of Gujarat
(c) SCA No.104/1996 dated 26.2.1996 in the
case of Padmaben Rasiklal Mehta v. State of
C/SCA/4598/2022 ORDER DATED: 21/12/2022
Gujarat.
5.9. Mr. Thakore would further submit that the
Deputy Collector while exercising powers of Review
or Recall by an order dated 9.9.2021, reviewed his
own order dated 22.6.2020 which is not permissible.
In support of this submission, Mr. Thakore would rely
on the following decisions:
(a) Patel Narshi Thakershi and others v. Shri
Pradyumansinghji Arjunsinghji reported in
1971(3) SCC 844
(b) Dr. (Smt.) Kuntesh Gupta v. Management
of Hindu Kanya Mahavidyalaya, Sitapur reported
in 1987(4) SCC 525
(c) Kalabharati Advertising v. Hemant
Vimalnath Narichania reported in 2010(9) SCC
(d) Bankimbhai Jayantilal Shah v. State of
Gujarat reported in 2002(3) GLH 673.
5.10. Mr. Thakore would further submit that the
Secretary has not exercised its power of revision. He
C/SCA/4598/2022 ORDER DATED: 21/12/2022
would take the Court to the order impugned in the
petition and submit that though the title mentions
"revision," in the submissions it is categorically
recorded that the respondent nos.5 to 8 have filed an
appeal under the Act. Even during the recording of
submissions, the authorities have consciously heard
the same as an appeal and merely because the word
"revision" is mentioned in the operative portion of
the order would not make the order without authority
of law.
5.11. Mr. Thakore would further submit that in
fact the arguments were heard on 22.11.2021 as
recorded in the order and merely because the
hearing board was adjourned of that date would not
preclude the author of the order to pronounce the
order in which the arguments were already heard.
C/SCA/4598/2022 ORDER DATED: 21/12/2022
6. Mr. Rohan Shah, learned AGP for the State would
submit that the order of the Secretary, Appeals was an
order in accordance with law. He would submit that in
order to defend the order which the authorities have
passed, it is not necessary for the State rebut the same by
way of an affidavit. The issue is a pure question of law. An
application was made u/s.5 by the respondent nos.5 to 8,
the same was granted. Based on the parameters set out in
the section, once the objections of the petitioners were
rejected on 31.3.2021, an appeal was filed. There was no
reason for this Court to upset the order dated 5.1.2022.
Mr. Shah has also produced the records of the revision /
appeal No.2/2021 under which the impugned order is
passed. He would draw the Court's attention to the appeal
memo filed by respondent nos.5 to 8 in the present
petition and submit that in fact it was an appeal u/s.6 of
the Act and the contention of the counsel for the petitioner
that it was a revision therefore entertained is
C/SCA/4598/2022 ORDER DATED: 21/12/2022
misconceived. He would also invite the Court's attention to
the proceedings that were held on 22.11.2021 and submit
that the essential parties in whose favour the application
was granted were heard and the Deputy Collector would
play no role inasmuch as, he had granted permission to
the Appellants in the Appeal which, though was revoked
by him, by the order under challenge, it is also necessary
to bear in mind that the objections of the petitioners were
rejected on 31.3.2021 which was a subject matter of a
separate appeal. No motive could be attributed to the
author of the order if the appeal was heard and disposed
of expeditiously
7. Mr. P. K. Jani, learned Senior Counsel in rejoinder
would submit that an order which is a conditional order is
a subsequently found to be based on misrepresentation.
The author granting such benefit can recall the order and
it is not an order reviewing the same. The judgments
C/SCA/4598/2022 ORDER DATED: 21/12/2022
therefore will have no bearing. That a partnership was of a
minority community was not pointed out. Induction of
Prakash Dholariya was only a facade. The inquiry under
the Bombay Land Revenue Code was completely vitiated.
The order was pronounced on 5.1.2022 when the entire
board was cancelled.
8. Having considered the submissions made by the
learned advocates for the respective parties, the issue that
needs to be resolved with regard to the considerations
governing transfers of immovable properties in "disturbed
areas" so declared under the provisions of the Disturbed
Areas Act, The case of the petitioners is that since the
transfer was made by the transferrer i.e. respondent nos.5
to 8 to the transferee, respondent nos.9 of which initially
the respondent nos.10 to 13 were partners, namely;
Maksud Askur Godil, Mohamad Irfan, Shabnam Juned
Motiwala and Ahmed Juned Motiwala and that the
C/SCA/4598/2022 ORDER DATED: 21/12/2022
respondent no.14 Prakash Manubhai Dholariya was
inducted and used as a front to bring forth the sale
transaction between the parties and then eased out on
29.8.2020 as a partner. The sale that was projected to be
a sale between two entities of the same community was in
fact not disclosed before the Deputy Collector. The
permission was therefore cancelled and, thereafter the
Secretary Appeals could not have restored permission
which was cancelled as a result of it being obtained by
fraud. The Disturbed Areas Act is an Act to declare certain
transfers of immovable property in disturbed areas of the
State to be void. It will be in the fitness of things to
reproduce certain provisions of the Act.
2. In this Act, unless the context otherwise
requires,-
(a) "disturbed area" means an area declared as
disturbed area under section 3;
(b) "fair value" in relation to immovable
property in disturbed areas means such value of
C/SCA/4598/2022 ORDER DATED: 21/12/2022
the property as approximate the market value
of such property;
3. (1) Where the State Government, having
regard to the intensity and duration of riot or
violence of mob and such other factors in any
area of the State is of opinion that public order
in that area was disturbed for a substantial
period by reason of riot or violence of mob, it
may, by notification in the Official Gazette -
(a) declare such area to be a disturbed area;
(b) specify the substantial period (hereinafter
referred to as "the specified period").
Explanation.--In this section the word "riot"
shall have the same meaning as in section 146
of the Indian Penal Code. (2) Where the State
Government is of opinion that public order in
the area declared as disturbed area under sub-
section (1) has ceased to be disturbed, it may
by notification in the Official Gazette rescind the
notification issued under sub-section (1) in
relation to such area and on such rescission the
provisions of this Act shall cease to apply to
such area except as respects things done or
omitted" to be done under this Act and except
as respects the application of the Bombay
Rents, Hotel and Lodging House Rates Control
Act, 1947 to such area, as amended by this Act.
4. (1) Notwithstanding anything contained in
any other law for the time being in force but
subject to sub-sections (2) and (3) all transfers
of immovable property situated in a disturbed
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area made during the specified period shall be
null and void, with effect from the date of such
transfer.
(2) (a) Any transferor or transferee in relation to
a transfer of immovable Short title. Definitions.
Declaration of disturbed area. XLV of 1860.
Bom. LVII of 1947. Certain transfers of
immovable property to be void. The Gujarat
Prohibition of Transfer of Immovable Property
and Provision for Protection of Tenants from
Eviction from Premises in Disturbed Areas Act,
1991. 4 of 7 property affected by the provisions
of sub-section (1) may, within the prescribed
period and in the prescribed form, make an
application to the Collector for a declaration that
the transfer of immovable property was made
by free consent of the transferor and the
transferee and for a fair value of the immovable
property so transferred.
(b) On receipt of such application, the Collector
shall hold a formal inquiry in the manner
prescribed by the Bombay Land Revenue Code,
1879, and after giving an opportunity to the
transferor and the transferee to be heard and
after considering any evidence produced,
decide whether the transfer of immovable
property was made by free consent of the
transferor and the transferee and for a fair value
of the immovable property and accordingly
(i) reject the application; or
(ii) by an order in writing make a declaration
that the transfer of the immovable property was
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made by free consent of the transferor and the
transferee and for a fair value of the immovable
property so transferred.
(3) Upon a declaration made under sub-clause
(ii) of clause (b) of sub section (2) in respect of
any transfer of immovable property, such
transfer of immovable property shall, with effect
from the date of such transfer, be deemed to be
valid for the purposes of this Act.
Explanation.-For the purposes of this section
and section 5, the word "transfer" in relation to
an immovable property means a transfer by way
of sale, gift, exchange, lease or otherwise and
includes allowing the possession of such
property to be taken or retained in part
performance of contract of the nature referred
to in section 53A of the Transfer of Property Act,
1882.
5. (1) Notwithstanding anything contained in
any other law for the time being in force but
subject to provisions of sub-section (3), no
immovable property situated in a disturbed area
shall, during the period of subsistence of the
notification issued under sub-section (1) of
section 3 declaring such area to be the
disturbed area, be transferred except with the
previous sanction of the Collector.
(2) Any transfer of immovable property made in
contravention of sub section (1) shall be null
and void.
(3) (a) Any person intending to transfer
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immovable property situated in a disturbed area
may, within the prescribed period and in the
prescribed form, make an application to the
Collector for obtaining previous sanction under
sub-section (1).
(b) On receipt of such application the Collector
shall hold a formal inquiry in the manner
provided by the Bombay Land Revenue Code,
1879, and after giving an opportunity to the
applicant to be heard and after considering any
evidence produced, decide whether the transfer
of immovable property is proposed to be made
by free consent of the persons intending to be
the transferor and the transferee and for a fair
value of the immovable property proposed to be
"transferred and accordingly -
(i) reject the application; or
(ii) by an order in writing give previous sanction
to the proposed transfer of immovable property.
Bom. V of 1879. 4 of 1882. Prohibition of
transfer of immovable property in disturbed
area. Bom. V of 1879. The Gujarat Prohibition of
Transfer of Immovable Property and Provision
for Protection of Tenants from Eviction from
Premises in Disturbed Areas Act, 1991. 5 of 7
6. Any person aggrieved by the decision of the
Collector rejecting an application under sub-
clause (i) of clause (b) of sub-section (2) of
section 4 or under sub-clause (i) of clause (b) of
sub-section (3) of section 5 may file an appeal
before the State Government in such manner,
within such time, and on payment of such fees,
C/SCA/4598/2022 ORDER DATED: 21/12/2022
as may be prescribed."
9. Reading Section 3 indicates that a State Government
can having regard to the intensity and duration of riot or
violence of mob declare an area to be a disturbed area for
a specified period.
10. It is not in dispute that the land in question in the
present petition is one within such area and the
notification still subsists.
11. Section 4 provides that unless the transferrer or
transferee of property apply and state that the transfer of
immovable property was made by free consent of the
transferrer and transferee and for fair value, on such
application, after an inquiry and after providing an
opportunity to the transferrer and the transferee to be
heard, the authority would either reject the application or
make a declaration that the transfer is made by free
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consent and for a fair value.
12. Sec. 5 of the Act provides that any person intending
to transfer immovable property has to apply for obtaining
previous sanction. On receipt of such application, the
Collector has to hold a formal inquiry in the manner
provided under the Bombay Land Revenue Code and after
giving an opportunity to the applicant to be heard, either
reject or grant such application.
13. Sec. 6 of the Act provides that an appeal would lie
against the decision of the Collector rejecting the
application by any person aggrieved, such rejection has to
be under Section 4 or Section 5.
14. Reading the aforesaid provisions would indicate that
the nature of inquiry and the parameters governing such
transfers is made by the competent authority on the basis
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of hearing the applicant transferee and considering the
evidence produced. In the decision making process what
the competent authorities have to consider is whether the
transaction is made by free consent of the person
intending to be the transferrer and the transferee and for a
fair value of the property.
15. The objections raised by the petitioners who are
residential societies within the vicinity of the property in
question are on record. It is also pleaded in the petition
that apart from these objections one Shri Asit J. Gandhi
who was a President of the Gorat Hanuman Khsetra
Samvardhak Samiti on had lodged objections, based on
which the permission granted on 22.6.2020 was revoked
by an order dated 9.9.2021. The spirit of the objections
indicate that it was their case that what was projected to
be a sale of property between a Single Community i.e.
Hindus inter se was in fact not so and a fact that the
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purchaser had partners which belonged to the minority
community was concealed. This would lead to invocation
of condition No.12 of the order granting permission.
Essentially therefore what was a gravamen of the
petitioners was that induction of a minority community
within a predominating Hindu community area would lead
to polarization. What is evident that these representations
so made by the petitioners were rejected by an order
dated 31.3.2021. Reading the order indicates that the
Deputy Collector opined that since the applications /
objections were made after the previous sanction was
granted such objections could not be entertained and the
petitioners could approach the appellate authority. The
petitioners have filed appeal which is numbered as
Revision Application No.1/2021.
16. At the first instance, even without considering the
pendency of this appeal before the competent authority, if
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the order revoking the permission which is dated 9.9.2021,
which was reversed by the impugned order is assessed, it
is apparent that the Deputy Collector in revoking the
permission so granted has been influenced by
considerations other than those which the Act particularly
Section 5 thereof require. At the cost of reiteration, it is
evident from reading the provisions of Section 4 and 5 that
the scope of inquiry before the authority is that to assess
whether the transaction is with free consent and for a fair
value. For taking the view that I do it will be in the fitness
of things to refer to the the decision in the case of Onali
Ezazuddin Dholkawala (Supra).
17. In the aforesaid decision, the issue for consideration
before the Court was in a case where the application for
sale was not accepted on the ground that based on the
Police Commissioner's report, the Deputy Collector came
to a conclusion that sale of a shop to Hindu which was
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predominantly in the area of Muslim population was under
consideration. The Court on the analysis of the Section
held as under:
"15. Let us now appreciate the facts in the
context of the legal provisions:
15.1 As prescribed under Rule 4(1) of the
Disturbed Areas Rules read with Section 5(3) of
the the Disturbed Areas Act, it provides that any
person intending to transfer immovable
property situated in a disturbed area, may
within the prescribed period and in the
prescribed format make an application to the
Collector for obtaining previous sanction. The
form so prescribed is under Rule 4(1) of the
Gujarat Disturbed Areas Act, 1991.
15.2 The application has been made by both the
purchaser and the seller. Since the sale was for
a property which belonged to Hindu and was
being purchased by the petitioner-'a Muslim',
since it was in the disturbed area, such an
application was made.
15.3 What is evident from the inquiry that
begun by a communication dated 01.08.2016
shows in what manner the inquiry proceeded,
was completely out of context with the
provisions of the Disturbed Areas Act. The
questions that needed to be answered in such
an inquiry have been reproduced in the earlier
part of this judgment. However, for the benefit,
the questions need to be repeated. The focus of
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the inquiry was whether the sale of property in
the area concerned would cause a public law
and order problem and whether such a sale
would affect the Hindu/Muslim community's
strength.
15.4 It appears that the inquiry proceeded in
those lines on the basis of the statements
recorded that the sale was for a fair value and
with pre-consent. The Police Authority got
involved and on the basis of the report of the
Police Inspector that since the property was in
an area predominated by the Muslim community
and since the sale was by a Hindu, sale of such
property by Hindu to a Muslim purchaser would
result in bringing down the strength of the
Hindu traders since this was in the context of a
sale of a shop. Based on this, the impugned
orders were passed.
15.5 Legal provisions reproduced herein above
would indicate that when prior permission for
sale is sought and an application is made under
Section 5(3) thereof in accordance with Clause-
B of sub-section (3) of Section 5 of the Act, the
Collector has to hold a formal inquiry in the
manner provided under the Bombay Land
Revenue Code. He has to give the applicant an
opportunity of hearing and after considering any
evidence produced, decide whether the transfer
of immovable property is proposed to be made
by free consent and for a fair value. Even when
post-facto sanction was sought, Section 4 of the
Act would provide that the scope of inquiry of
the Collector is to examine whether the sale is
by free-consent and for a fair value.
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15.6 It is undisputed that the property in
question was sold on a fair value and with free
consent, as it is evident from the statement
recorded by the seller and the purchaser. When
the scope of inquiry is that of free consent and
fair value, the role of neighbors in the context of
such sale becomes irrelevant. However, in the
facts of the present case, even the neighbors
have given statements supporting the sale.
15.7 While examining the issue of scope of
inquiry under Sections 5 and 4 of the Act which
deal with the nature and scope of the inquiry of
the Collector, this Court by the judgment of
26.02.1996 in Special Civil Application No.104 of
1996 has held as under: "3. The perusal of the
aforesaid provision on its plain reading lead to
no other conclusion that the declaration of
nullity in respect of transfers which have taken
place during the period when area was declared
to be disturbed area does not survive in the
case of transfers which have taken place with
free consent of transferor and transferee for fair
value thereof. The object of the provision
apparently is to safeguard the interest of the
owner and occupant of the property against
panic sales on account of disturbances in the
riot stricken area. Subsection (1) declares all
transfers of immovable property situated in
disturbed area null and void with effect from the
date of such transfer but such declaration is
subject to the provisions of subsection (2) and
(3) of Section 4. Clause (a) of subsection (2)
permits the transfer or transferee of the
effected property to make an application to the
C/SCA/4598/2022 ORDER DATED: 21/12/2022
Collector `for a declaration that transfer of
immovable property was made by free consent
of the transferor or transferee and for a value of
the immovable property in question.' The
application is required to be made specifically
for declaration in these two respects. Under
clause (b) of subsection (2), the Collector is
required to make an enquiry whether the
transfer of immovable property was made by
free consent of the transferor and the transferee
and for a fair value of the immovable property in
question, that is to say, he has to enquire into
facts which is required to be applied for through
an application under clause (a) of subsection
(2). After holding an enquiry and reaching his
conclusion on the question on which he is
required to hold an enquiry, he is authorized to
reject the application or make the declaration
sought through the application. Obviously,
rejection of application has to be made if the
Collector finds against the applicant in respect
of free consent or fair market value as
consideration. But if he finds on the two issues
for which application is required to be made and
for which he is required to hold an enquiry, he
has to record his finding by way of declaration
under subclause (ii) of clause (b) of subsection
(2). The job of the Collector comes to an end so
soon he records a finding in respect of the two
facts required to be investigated under clause
(b) of sub section(2). The effect of such
declaration is provided by statute under
subsection (3) which states in no uncertain
terms that upon a declaration made under
subclause (ii) of clause (b) of subsection (2) in
respect of any transfer of immovable property,
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such transfer of immovable property shall with
effect from the date of such transfer be deemed
to be valid for the purposes of this Act. It is not
left to the Collector to enquire into matters
other than those in respect of which an
application is required to be made and in
respect of which he is to make enquiry and then
make an order in consonance with his findings
after enquiry and to infructuate the operation of
subsection (3) notwithstanding his findings
recorded on the matters mentioned in
subsection (2)(a) and (b). 4. Therefore, in my
opinion, once the Collector had reached the
conclusion that the transfer of the property was
with free consent of the transferor and
transferee and it was for a fair consideration of
value of the property on the date of transfer he
was not left with any jurisdiction to reject the
application but was under an obligation to make
such declaration under subclause (2) of clause
(b) of Subsection (2). There is no specific form
of such declaration. Having reached these
findings on these two aspects, the consequence
automatically shall take effect in terms of
subsection (3). The Collector as well as the
appellate authority, therefore, in my opinion,
have acted without jurisdiction in rejecting the
application in spite of their finding in positive as
the facts mentioned in clause (a) and (b) of
subsection (2) on the grounds which is not
required to be investigated under the
application required to be moved under
subsection (2)(a) of Section 4. 5. The petition
accordingly succeeds. The impugned order to
the extent it records rejection of the application
is quashed and the effect of subsection (3) will
C/SCA/4598/2022 ORDER DATED: 21/12/2022
take effect in terms of the findings recorded by
the Collector as well as the appellate authority.
Rule made absolute. There shall be no order as
to costs."
15.8 Even in Special Civil Application No.107 of
1996, dealing with a similar issue for an
application under Section 5, in para 7, the Court
has observed that both, Sections 4 and 5 of the
Act are part of the scheme. The main ingredient
of the two provisions is to see whether the
transaction with regard to the immovable
property is for a fair consideration and with free
consent. Para 7 reads as under: "7. It is to be
noticed that Section 4 and Section 5 both are
part of the scheme which become operative in
respect of any area which is declared as
disturbed area under Section 3 of the Act,
affecting the transactions which had already
taken place during the period for which area has
been declared to be disturbed area. Respective
provisions govern the case depending on the
fact whether transaction had taken place prior
to such declaration, or is intended to take place
after such declaration. The main ingredient of
the two provisions are that in the first instance
the transaction which had already taken place is
declared to be null and void and future
transactions of the immovable property during
the period of the continuance of the declaration
are prohibited. However, a room has been made
to soften the rigour of the prohibition where the
transfer of the immovable parties is by the free
consent of the parties and is for fair
consideration which can be considered to be the
market value of the property. The enquiry into
C/SCA/4598/2022 ORDER DATED: 21/12/2022
these two facts is left to the Collector on an
application being made in this behalf in either of
the circumstances and finding in favour of the
applicant on those two aspects, the declaration
of nullity is turned into declaration of validity
and so also on findings in favour of the applicant
in respect of these two aspects in the case of
intending transfers, the Collector is required to
grant previous sanction."
15.9 In the case of SNA Infraprojects Private
Limited (supra) the Court has held that from the
bare reading of the preamble of the Act, it is
clear that restrictions of the transfer of the
immovable property is imposed by the
Government with a clear intention of ensuring
that the transfer of immovable property is made
by free consent and for a fair value. Para 8 of
this judgment reads as under: "8. Against the
above backdrop of facts and contentions, it was
seen that the Act was enacted in 1991 to
declare certain transfers of immovable
properties in disturbed areas of the State to be
void and to prohibit temporary transfers of
immovable properties in such areas. Section 3
of the Act provides for declaration of certain
area to be a "disturbed area" for a specified
period, having regard to the intensity and
duration of riot or mobviolence and such other
factors in any area of the State wherein public
order was disturbed for a substantial period.
Section 4 of the Act provides that all transfers of
immovable property situated in a disturbed area
made during the specified period shall be null
and void with effect from the date of such
transfers and also provides for an application to
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the Collector, within the prescribed period, for a
declaration that the transfer of immovable
property was made by free consent of the
transferor and transferee and for a fair value.
Such application could be rejected after hearing
the parties and considering the evidence or the
Collector may declare by an order that the
transfer was valid. Section 5 of the Act, opening
with a non-obstante clause, provides that no
immovable property situated in a disturbed area
shall, during the period of subsistence of the
notification issued under subsection (1) of
section 3 declaring such area to be the
disturbed area, be transferred except with the
previous sanction of the Collector; and any
transfer of immovable property made in
contravention of subsection (1) shall be null and
void. Section 5 also provides for making an
application to the Collector, for holding a formal
inquiry, opportunity of hearing and ascertaining
whether the transfer of immovable property is
proposed to be made by free consent of the
transferor and the transferee and for a fair
value. The decision of the Collector under
section 4 or 5, subject to appeal to the State
Government under section 6 and the decision of
the State Government on the appeal, shall be
final and conclusive and shall not be questioned
in any Court, according to section 8. No suit,
prosecution or other legal proceedings shall lie
against any person for anything which is in good
faith done or purported to be done under the
Act, in terms of section 10 of the Act. A bare
reading of the preamble and relevant provisions
of the Act would clearly show that restriction on
transfer of immovable property is imposed by
C/SCA/4598/2022 ORDER DATED: 21/12/2022
the Government with the clear intention of, and
provision for, ensuring that any transfer of
immovable property in a disturbed area is made
by free consent of the parties and for a fair
value.
8.1 By virtue of section 4 of the Transfer of
Property Act, 1882 ("the TP Act", for short),
section 54 of that Act has to be read as
supplemental to the Indian Registration Act,
1908. Section 54 of the TP Act defines "Sale"
and stipulates that transfer, in case of tangible
immovable property of the value of one hundred
rupees and upwards, can be made only by a
registered instrument. Relevant provisions of
the Indian Registration Act, 1908 read as under:
34. Enquiry before registration by registering
officer (1) ..... (2) ..... (3) The registering officer
shall thereupon- (a) enquire whether or not such
document was executed by the person by whom
it purports to have been executed; (b) satisfy
himself as to the identity of the persons
appearing before him and alleging that they
have executed the document; and (c) in the
case of any person appearing as a
representative, assignee or agent, satisfy
himself of the right of such person so to appear.
(4) ..... (5) ..... 35. Procedure on admission and
denial of execution respectively (1) (a) If all the
persons executing the document appear
personally before the registering officer and are
personally known to him, or if he be otherwise
satisfied that they are the persons they
represent themselves to be, and if they all
admit the execution of the document, or (b) If in
the case of any person appearing by a
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representative, assignee or agent, such
representative, assignee or agent admits the
execution, or (c) If the person executing the
document is dead, and his representative or
assignee appears before the registering officer
and admits the execution, the registering officer
shall register the document as directed in
sections 58 to 61, inclusive. (2) The registering
officer may, in order to satisfy himself that the
persons appearing before him are the persons
they represent themselves to be, or for any
other purpose contemplated by this Act,
examine any one present in his office. (3) (a) If
any person by whom the document purports to
be executed denies its execution, or (b) if any
such person appears to the registering officer to
be a minor, an idiot or a lunatic, or (c) if any
person by whom the document purports to be
executed is dead, and his representative or
assignee denies its execution, the registering
officer shall refuse to register the document as
to the person so denying, appearing or dead:
PROVIDED that, where such officer is a
Registrar, he shall follow the procedure
prescribed in Part XII: PROVIDED FURTHER that
the State Government may, by notification in
the Official Gazette, declare that any
SubRegistrar named in the notification shall, in
respect of documents the execution of which is
denied, be deemed to be a Registrar for the
purposes of this sub-section and of Part XII.]
PART XII OF REFUSAL TO REGISTER 71. Reasons
for refusal to register to be recorded (1) Every
Sub-Registrar refusing to register a document,
except on the ground that the property to which
it relates is not situate within his sub-district,
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shall make an order of refusal and record his
reasons for such order in his Book No. 2, and
endorse the words "registration refused" on the
document; and, on application made by any
person executing or claiming under the
document, shall, without payment and
unnecessary delay, give him A copy of the is
annexed herewith and marked as Annexure: to
this petition. of the reasons so recorded. (2) No
registering officer shall accept for registration a
document so endorsed unless and until, under
the provisions hereinafter contained, the
document is directed to be registered. 72.
Appeal to Registrar from orders of SubRegistrar
refusing registration on grounds other than
denial of execution (l) Except where the refusal
is made on the ground of denial of execution, an
appeal shall lie against an order of a Sub-
Registrar refusing to admit a document to
registration (whether the registration of such
document is compulsory or optional) to the
Registrar to whom such SubRegistrar is
subordinate, if presented to such Registrar
within thirty days from the date of the order;
and the Registrar may reverse or alter such
order. (2) If the order of the Registrar directs the
document to be registered and the document is
duly presented for registration within thirty days
after the making of such order, the Sub-
Registrar shall obey the same, and thereupon
shall, so far as may be practicable, follow the
procedure prescribed in sections 58, 59 and 60;
and such registration shall take effect as if the
document had been registered when it was first
duly presented for registration. 73. Application
to Registrar where SubRegistrar refuses to
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register on ground of denial of execution (1)
When a Sub-Registrar has refused to register a
document on the ground that any person by
whom it purports to be executed, or his
representative or assign, denies its execution,
any person claiming under such document, or
his representative, assignee or agent authorized
as aforesaid, may, within thirty days after the
making of the order of refusal, apply to the
Registrar to whom such Sub- Registrar is
subordinate in order to establish his right to
have the document registered. (2) Such
application shall be in writing and shall be
accompanied by A copy of the is annexed
herewith and marked as Annexure: to this
petition. of the reasons recorded under section
71, and the statements in the application shall
be verified by the applicant in manner required
by law for the verification of plaints. 74.
Procedure of Registrar on such application In
such case, and also where such denial as
aforesaid is made before a Registrar in respect
of a document presented for registration to him,
the Registrar shall, as soon as conveniently may
be, enquire- (a) whether the document has been
executed; (b) whether the requirements of the
law for the time being in force have been
complied with on the part of the applicant or
person presenting the document for
registration, as the case may be, so as to entitle
the document to registration." Rule 45 of the
Gujarat Registration Rules, 1970, made in
exercise of the powers conferred by Section 69
of the Registration Act, 1908, reads as under:
Rule 45 Certain requirements to be verified
before accepting a document for registration-
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(1) A registering officer shall, before accepting
any document for registration, not concern
himself with its validity but see that - (a) it is
properly stamped; (b) it is presented within the
proper time and in the proper office; (c) it is
presented by a competent person; (d) if it
relates to immovable property, that it is not
open to objection under section 21 or 22; (e) if
any document is in a language which he does
not understand, the provisions of section 19 are
complied with; (f) any interlineations blanks,
erasures or alterations appearing in the
document are attested by the signature or
initials of the person or persons executing the
same as required by section 20; (g) the deed
does not contravene the provisions of Sub
Section (1) of Section 5 of the Foreign Exchange
Regulation Act, 1947, and (h) whether sale
certificate and prior permission in writing of the
authorities concerned are produced before him
in original, if the deed relates to transfer of
Government built property. (2) If on
presentation of the document, the fees
prescribed under section 78 are not paid
demand, the registering office shall refuse to
register the document." (emphasis added)"
15.10 Even in the case of Bharatkumar
Shankarlal Somani (supra), the Court held as
under: "10 At the cost of repetition, first, free
consent of the persons intending to be the
transferor and the transferee, and secondly,
such transfer is for a fair value of the immovable
property proposed to be transferred. In my view,
the other considerations, as pointed out by the
writ applicant, are not germane."
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15.11 It is true that the Disturbed Areas Act has
been framed with the object to declare certain
transfers of immovable properties to be void
under declaration so issued. To bring a
particular area within the fold of a "Disturbed
Area" may be in the context of public order but
when it comes to the question of adjudging of a
sale of a property in such an area, the
paramount consideration before the authorities
viewed from the person who was selling such
property is as to whether such a sale is being
made bona-fide and not a distress sale so as to
immigrate out of the area in context of a deal so
declared as it is a disturbed area. Keeping these
considerations in mind, the provisions of Section
4 and 5 provided that when the question of
either giving the postfacto sanction to such sale
or a permission to sale is concerned, the
Collector has to consider whether the sale is for
a fair consideration and with pre-consent. The
object to get into such sale consideration is not
to see whether it would create a law and order
problem but to decide whether the sale is a
distress sale so as to migrate from such an area
by any manner getting away and selling his
property for whatever consideration under
fear."
18. The only aspect that the competent authorities in
light of the decision therefore had to consider was to
whether the sale was with free consent and for fair value.
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19. In the aforesaid decision, the Court had relied on
decision of the Coordinate Bench in the case of
Bharatkumar Shankarlal Somani (Supra). Para 9 and
10 of the decision are reproduced hereunder:
"9 Having heard the learned counsel appearing
for the parties and having considered the
materials on record, I am of the view that for the
purpose of grant of permission, two things are
important, as referred to above.
10 At the cost of repetition, first, free
consent of the persons intending to be the
transferor and the transferee, and secondly,
such transfer is for a fair value of the immovable
property proposed to be transferred. In my view,
the other considerations, as pointed out by the
writ applicant, are not germane."
20. In the case of Padmaben Rasiklal Mehta (Supra),
the Court after considering Section 4, the Court held as
under:
"2. The petitioner contends that once Collector
had reached the conclusion that the transfer of
the property in question was made by free
consent of the transferor and the transferee and
was for a fair value of the property in question,
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he had no authority to reject the application on
any ground whatsoever. Reference to the public
interest is alien to the whole scheme of the Act.
Learned Assistant Government Pleader joins
issue on this score and contends that as the
predominated object of the Act is to safe guard
public interest, the Collector was competent to
reject the application for saving the transfer
from being nullity on the ground of public
interest, notwithstanding the finding about free
consent and fair market value having been
recorded in favour of the applicant. It is apposite
to reproduce Section 4 of the Act.
4(1) Notwithstanding anything contained in any
other law for the time being in force but subject
to subsections (2) and (3) all transfers of
immovable property situated in a disturbed area
made during the specified period shall be null
and void, with effect from the date of such
transfer."
(2)(a) Any transferor or transferee in relation to
a transfer of immovable property affected by
the provisions of subsection (1) may, within the
prescribed period and in the prescribed form,
make an application to the Collector for a
declaration that the transfer of immovable
property was made by free consent of the
transferor and the transferee and for a fair value
of the immovable property so transferred.
(b) On receipt of such application, the Collector
shall hold a formal inquiry in the manner
prescribed by the Bombay Land Revenue Code,
1879, and after giving an opportunity to the
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transferor and the transferee to be heard and
after considering any evidence produced,
decide whether the transfer of immovable
property was made by free consent of the
transferor and the transferee and for a fair value
of the immovable property and accordingly -
(i) reject the application; or
(ii) by an order in writing make a declaration
that the transfer of the immovable propertywas
made by free consent of the transferor and the
transferee and for a fair value of the immovable
property so transferred.
(3) Upon a declaration made under subclause
(ii) of clause (b) of subsesction (2) in respect of
any transfer of immovable property, such
transfer of immovable property shall, with effect
from the date of such transfer, be deemed to be
valid for the purposes of this Act. Explanation -
For the purposes of this section and section 5,
the word "transfer" in relation to an immovable
property means a transfer by wayof sale, gift,
exchange, lease or otherwise and includes
allowing the possession of such property to be
taken or retained in part performance of
contract of the nature referred to in section 53A
of the Transfer of Property Act, 1882."
3. The perusal of the aforesaid provision on its
plain reading lead to no other conclusion that
the declaration of nullity in respect of transfers
which have taken place during the period when
area was declared to be disturbed area does not
survive in the case of transfers which have
taken place with free consent of transferor and
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transferee for fair value thereof. The object of
the provision apparently is to safeguard the
interest of the owner and occupant of the
property against panic sales on account of
disturbances in the riot stricken area.
Subsection (1) declares all transfers of
immovable property situated in disturbed area
null and void with effect from the date of such
transfer but such declaration is subject to the
provisions of subsection (2) and (3) of Section
4. Clause (a) of subsection (2) permits the
transfer or transferee of the effected property to
make an application to the Collector `for a
declaration that transfer of immovable property
was made by free consent of the transferor or
transferee and for a value of the immovable
property in question.' The application is required
to be made specifically for declaration in these
two respects. Under clause (b) of subsection (2),
the Collector is required to make an enquiry
whether the transfer of immovable property was
made by free consent of the transferor and the
transferee and for a fair value of the immovable
property in question, that is to say, he has to
enquire into facts which is required to be
applied for through an application under clause
(a) of subsection (2). After holding an enquiry
and reaching his conclusion on the question on
which he is required to hold an enquiry, he is
authorized to reject the application or make the
declaration sought through the application.
Obviously, rejection of application has to be
made if the Collector finds against the applicant
in respect of free consent or fair market value
as consideration. But if he finds on the two
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issues for which application is required to be
made and for which he is required to hold an
enquiry, he has to record his finding by way of
declaration under subclause (ii) of clause (b) of
subsection (2). The job of the Collector comes to
an end so soon he records a finding in respect
of the two facts required to be investigated
under clause (b) of subsection (2). The effect of
such declaration is provided by statute under
subsection (3) which states in no uncertain
terms that upon a declaration made under
subclause (ii) of clause (b) of subsection (2) in
respect of any transfer of immovable property,
such transfer of immovable property shall with
effect from the date of such transfer be deemed
to be valid for the purposes of this Act. It is not
left to the Collector to enquire into matters
other than those in respect of which an
application is required to be made and in
respect of which he is to make enquiry and then
make an order in consonance with his findings
after enquiry and to infructuate the operation of
subsection (3) notwithstanding his findings
recorded on the matters mentioned in
subsection (2)(a) and (b). 4. Therefore, in my
opinion, once the Collector had reached the
conclusion that the transfer of the property was
with free consent of the transferor and
transferee and it was for a fair consideration of
value of the property on the date of transfer he
was not left with any jurisdiction to reject the
application but was under an obligation to make
such declaration under subclause (2) of clause
(b) of Subsection (2). There is no specific form
of such declaration. Having reached these
findings on these two aspects, the consequence
C/SCA/4598/2022 ORDER DATED: 21/12/2022
automatically shall take effect in terms of
subsection (3). The Collector as well as the
appellate authority, therefore, in my opinion,
have acted without jurisdiction in rejecting the
application in spite of their finding in positive as
the facts mentioned in clause (a) and (b) of
subsection (2) on the grounds which is not
required to be investigated under the
application required to be moved under
subsection (2)(a) of Section 4."
21. In light of the legal position enunciated hereinabove,
it was not the business of the Deputy Collector while
revoking the permission which was granted on 22.6.2020
to delve into the issue whether the sale between the
parties of different communities would lead to polarization.
To hold that condition 12 of the order granting sanction
was invokable because of a misrepresentation was clearly
beyond the reach of Section 5 of the Act.
22. The second issue which the petitioners have raised is
whether they at all needed to be necessary or proper
parties to the decision making process when an
C/SCA/4598/2022 ORDER DATED: 21/12/2022
application u/s.5 was made by the person intending to
transfer such property. Also is a question whether they
could have objected to such a sale. Extensively as set out
hereinabove, when Sections 4 and 5 are read, what is
indicated is that such applications are decided after giving
an opportunity to the applicant to be heard that is the
person intending to transfer. It is in light of this context
that the provision of Appeal u/s.6 has to be read. On an
application which is rejected that is the application is
made at the hands of transferee, that an appeal can be
filed.
23. When the facts of the present case are seen, it is
evident that the permission that was granted on
22.6.2020, was revoked by an order of 9.9.2021. Reading
that order would indicate that what it did was that it
cancelled the permission granted in favour of the
transferrer i.e. the respondent Nos.5 to 8. That
C/SCA/4598/2022 ORDER DATED: 21/12/2022
cancellation of permission and revoking thereof
tantamounts to rejection of application which was
otherwise granted. The appeal therefore at the hands of
respondent Nos.5 to 8 was therefore maintainable, as that
tantamounted to rejection of the permission which was
granted.
24. As far as the contention of learned Senior counsel Mr.
Jani that the order dated 5.1.2022 was passed without
joining the petitioners as party or giving them a hearing
though a caveat was filed is the contention that is
misconceived. The Scheme of the Act as it stands today
particularly in light of the subsequent amendment not
being notified indicates that there cannot be a lis between
the petitioners and the applicant transferrer or a person
intending to transfer.
25. This brings us to the other issue which needs to be
C/SCA/4598/2022 ORDER DATED: 21/12/2022
decided. The question is whether the petitioners could at
all have objected to the sanction granted and could the
order therefore be revoked. As set out in the earlier part of
this order and the case law discussed indicates that only
two parameters i.e. free consent and fair value could be
the grounds on which the applications had to be decided.
The amendment dated 15.10.2020, whereby, clause (iv)
and (v) were added has not been brought in force, in light
of the order of the Division Bench in SCA No.1011 of 2021
dated 20.1.2021. The order reads as under:
"We have heard Shri Mihir Joshi, learned Senior
Counsel assisted by Shri Muhammad Isa M.
Hakim, learned counsel for the petitioners
and Ms. Manisha Lavkumar Shah, learned
Government Pleader assisted by Shri D.M.
Devnani, learned Assistant Government
Pleader for the State - respondent on
advance copy.
Issue Notice returnable on 03.02.2021. Shri
D.M. Devnani, learned Assistant Government
Pleader waives service of notice on behalf of the
State - respondent.
As there is a challenge to the
provisions of the State enactment as
C/SCA/4598/2022 ORDER DATED: 21/12/2022
being ultra vires, let notice be issued to
the learned Advocate General for the date
already fixed.
Ms. Manisha Lavkumar Shah, learned
Government Pleader upon instructions has
informed that as of date the Notification under
Section 3 (1) (ii) and (iii) of the Gujarat
Prohibition of Transfer of Immovable Property
and Provisions for Protection of Tenants from
Eviction from premises in the Disturbed Areas
Act, 1991 (Amendment Act, 2020) has still not
been issued and is at the stage of the assent of
the Governor.
Till the next date fixed, the respondent - State
is restrained from issuing any Notification under
the above provisions. The reasons are not
invited as such, we have not recorded
any reasons."
26. In the decision making process therefore, the concept
of polarization of persons etc., the clauses which have
been set out hereinabove were foreign to the decision
making process and on such ground therefore no
revocation could have been done. Consequentially, the
Deputy Collector could not have entertained the
application and revoked the order particularly when he
C/SCA/4598/2022 ORDER DATED: 21/12/2022
had on 31.3.2021 rejected the application.
27. To the submission of learned Senior Advocate Mr. Jani
that no revision can be filed by respondent Nos.5 to 8, the
original records have been perused by the Court. Reading
of the memo of appeal which is a part of the record
indicates that it was an appeal u/s.6 of the Act and as
stated hereinabove the respondent Nos.5 to 8 were
entitled to file such an appeal and in the opinion of this
Court, when the revocation was beyond the scope
envisaged u/s.5 of the Act where the petitioners had no
role to play the order was rightly reversed. That brings me
to decide the submission made by the learned Senior
Advocate as to whether pending the appeals of the
petitioners, could the authority, decide the respondent
Nos.5 to 8's appeal in hot haste. In fact from the
chronology that is referred to, it is evident that initially the
objections of the petitioners were rejected on 31.3.2021,
C/SCA/4598/2022 ORDER DATED: 21/12/2022
though the communication would indicate that the
petitioners could file an appeal. The words "Any person
aggrieved" in Sec.6 is qualified by the words "By the
decision of the collector rejecting an application" under
sub clause (i) of Clause (b) of sub section 3 of Section 5. In
the opinion of this Court, no appeal can be filed even by
the petitioners against the order dated 31.3.2021 and at
best, it could have resorted to a remedy including the one
under Article 226 of the Constitution of India which it has
not so done.
28. The question that also needs to be considered is
whether the Deputy Collector could have recalled and or
reviewed its own order. This has to be considered
especially in light of the flip flop of the Deputy Collector.
On 22.6.2020, he grants the approval. On an objection
made by the petitioners, he rejects the objection on
31.3.2021. On an application by Gorat Hanuman Kshetra
C/SCA/4598/2022 ORDER DATED: 21/12/2022
Samvardhak Samiti which, is one of the petitioners the
Deputy Collector revokes the permission on 9.9.2021.
29. In the case of Patel Narshi Thakershi (Supra),
reading para 4 thereof indicates that that the power of
review is not an inherent power and in absence of any
statutory provision it cannot be so reviewed.
"4. The first question that we have to consider is
whether Mr. Mankodi had competence to quash the
order made by the Saurashtra Government on
October 22, 1956. It must be remembered that Mr.
Mankodi was functioning as the delegate of the State
Government. The order passed by Mr. Mankodi, in
law amounted to a review of the order made by
Saurashtra Government. It is well settled that the
power to review is not an inherent power. It must be
conferred by law either specifically or by necessary
implication. No provision in the Act was brought to
our notice from which it could be gathered that the
Government had power to review its own order. If the
Government had no power to review its own order, it
is obvious that its delegate could not have reviewed
its order. The question whether the Government's
order is correct or valid in law does not arise for
consideration in these proceedings so long as that
order is not set aside or declared void by a
competent authority. Hence the same cannot be
C/SCA/4598/2022 ORDER DATED: 21/12/2022
ignored The Subordinate Tribunals have to carry out
that order. For this reason alone the order of Mr.
Mankodi was Liable to be set aside."
30. In the case of Dr. (Smt.) Kuntesh Gupta (Supra),
para 11 thereof reads as under:
"11. It is now well established that a quasi judicial
authority cannot review its own order, unless the
power of review is expressly conferred on it by the
statute under which it derives its jurisdiction. The
Vice-Chancellor in considering the question of
approval of an order of dismissal of the Principal, acts
as a quasi judicial authority. It is not disputed that
the provisions of the U.P. State Universities Act, 1973
or of the Statutes of the University do not confer any
power of review on the Vice- Chancellor. In the
circumstances, it must be held that the Vice-
Chancellor acted wholly without jurisdiction in
reviewing her order dated January 24, 1987 by her
order dated March 7, 1987. The R said order of the
Vice-Chancellor dated March 7, 1987 was a nullity."
31. In the case of Kalabharati Advertising (Supra),
relevant paragraph Nos.12 to 15 & 29 are reproduced
hereunder:
"12. It is settled legal proposition that unless the
statute/rules so permit, the review application is
C/SCA/4598/2022 ORDER DATED: 21/12/2022
not maintainable in case of judicial/quasi-judicial
orders. In absence of any provision in the Act
granting an express power of review, it is
manifest that a review could not be made and
the order in review, if passed is ultra-vires,
illegal and without jurisdiction. (vide: Patel
Chunibhai Dajibha v. Narayanrao Khanderao
Jambekar & Anr., AIR 1965 SC 1457; and
Harbhajan Singh v. Karam Singh & Ors., AIR
1966 SC 641).
13. In Patel Narshi Thakershi & Ors. v. Shri
Pradyuman Singhji Arjunsinghji, AIR 1970 SC
1273; Maj. Chandra Bhan Singh v. Latafat Ullah
Khan & Ors., AIR 1978 SC 1814; Dr. Smt.
Kuntesh Gupta v. Management of Hindu Kanya
Mahavidhyalaya, Sitapur (U.P.) & Ors., AIR 1987
SC 2186; State of Orissa & Ors. v. Commissioner
of Land Records and Settlement, Cuttack & Ors.,
(1998) 7 SCC 162; and Sunita Jain v. Pawan
Kumar Jain & Ors., (2008) 2 SCC 705, this Court
held that the power to review is not an inherent
power. It must be conferred by law either
expressly/specifically or by necessary
implication and in absence of any provision in
the Act/Rules, review of an earlier order is
impermissible as review is a creation of statute.
Jurisdiction of review can be derived only from
the statute and thus, any order of review in
absence of any statutory provision for the same
is nullity being without jurisdiction.
14. Therefore, in view of the above, the law on
the point can be summarised to the effect that
in absence of any statutory provision providing
for review, entertaining an application for
C/SCA/4598/2022 ORDER DATED: 21/12/2022
review or under the garb of clarification/
modification/correction is not permissible. Case
dismissed/withdrawn- effect on interim relief:
15. No litigant can derive any benefit from the
mere pendency of a case in a Court of Law, as
the interim order always merges into the final
order to be passed in the case and if the case is
ultimately dismissed, the interim order stands
nullified automatically. A party cannot be
allowed to take any benefit of his own wrongs
by getting an interim order and thereafter
blame the Court. The fact that the case is found,
ultimately, devoid of any merit, or the party
withdrew the writ petition, shows that a
frivolous writ petition had been filed. The maxim
"Actus Curiae neminem gravabit", which means
that the act of the Court shall prejudice no-one,
becomes applicable in such a case. In such a
situation the Court is under an obligation to
undo the wrong done to a party by the act of
the Court. Thus, any undeserved or unfair
advantage gained by a party invoking the
jurisdiction of the Court must be neutralised, as
the institution of litigation cannot be permitted
to confer any advantage on a party by the
delayed action of the Court. (vide: Dr. A.R.
Sircar v. State of Uttar Pradesh & Ors., 1993
Supp. (2) SCC 734; Shiv Shanker & Ors. v. Board
of Directors, Uttar Pradesh State Road Transport
Corporation & Anr., 1995 Supp. (2) SCC 726; the
Committee of Management, Arya Inter College,
Arya Nagar, Kanpur & Anr. v. Sree Kumar Tiwary
& Anr., AIR 1997 SC 3071; GTC Industries Ltd. v.
Union of India & Ors., AIR 1998 SC 1566; and
Jaipur Municipal Corporation v. C.L. Mishra,
C/SCA/4598/2022 ORDER DATED: 21/12/2022
(2005) 8 SCC 423).
29. The High Court could not have allowed the
Corporation to recall its earlier order and pass a
fresh order, that too, without giving an
opportunity of hearing to the appellant and the
Society. Review is a statutory remedy. In spite
of several queries put by us to the learned
counsel for the respondents, no provision for
review under the statute could be brought to
our notice. The court cannot confer a jurisdiction
upon any authority. Conferring jurisdiction upon
a Court/Tribunal/Authority is a legislative
function and the same cannot be conferred
either by the court or by the consent of the
parties. Such an order passed by the High Court
is without jurisdiction and, therefore, a nullity.
Any order passed in pursuance thereof, also
remains unenforceable and inexecutable. More
so, the High Court could not have permitted the
Corporation to pass an order without giving an
opportunity of hearing to the appellant and the
society."
32. In the case of Bankimbhai Jayantilal Shah
(Supra), it was a case where the power u/s.5 of the Act
was exercised and then the permission was subsequently
cancelled. The Court held as under:
in purported exercise of power under Section
C/SCA/4598/2022 ORDER DATED: 21/12/2022
5(2) of the Act cancelled the permission granted
earlier on 13th November, 2001 by declaring
the transfer as null and void. It is this order
which is under challenge.
4. The say of the petitioners is that respondent
No. 2 does not have any jurisdiction nor any
power to pass the impugned order (Annexure-C)
by invoking provisions of Section 5(2) of the Act.
On behalf of the respondents it is contended
that respondent No. 2 had received letter dated
22nd December, 2001 from Police Inspector,
Kalupur Police Station and an application dated
5th December, 2001 from residents of
Dayabhai's Wadi. It is stated in the reply-
affidavit dated 2nd May, 2002 that as
respondent No. 2 authority came to know that
the property is in the sensitive area of Kalupur
and the tenants are residing in the said
property, the sale in pursuance of the
permission granted may result in communal
tension, and hence, to avoid adverse effect,
order dated 13th November, 2001 was
cancelled and the impugned order under
Section 5(2) of the Act was passed. The learned
A.G.P., submitted that if the petitioners were
aggrieved by the aforesaid order of 14th
December, 2001 they could file an appeal as
provided under Section 6 of the Act.
5. The scheme of the Act goes to show that the
Act was framed to declare certain transfers of
immovable property in disturbed areas of the
State to be void and to prohibit temporarily
transfers of immovable property in such areas
as well as for providing protection to tenants of
C/SCA/4598/2022 ORDER DATED: 21/12/2022
certain immovable properties in such areas from
eviction.
6. Section 3 of the Act provides for powers to
declare a particular area as a disturbed area for
a specified period. Section 4 declares that
notwithstanding anything contained in any other
law for the time-being in force but subject to
Sub-sections (2) and (3) all transfers of
immovable property situated in a disturbed area
made during the specified period shall be null
and void, with effect from the date of such
transfer. However, Sub-section (2) carves out
exception whereby any person intending to
transfer may approach the Collector for a
declaration that the transfer of immovable
property was made by free consent of the
transferor and the transferee and on receipt of
such application, the Collector is required to
hold an inquiry as provided in the said clause,
and thereafter, either reject the application or
declare that such transfer was made with free
consent and for a fair value.
7. Section 5 lays down similar scheme in
relation to a disturbed area where a transfer has
not yet been effected i.e., seek a previous
sanction. On reading of the entire Act, it is
apparent that the powers granted to the
respondent authority under the Act do not
permit cancellation of sanction which is validly
granted. Only power available under Section 5
Sub-section (2) is to consider transfer of
immovable property made in contravention of
Sub-section (1) of Section 5 to be null and void.
As the facts' that have come on record show it is
C/SCA/4598/2022 ORDER DATED: 21/12/2022
not anybody's case that there was any
contravention of Section 5(1). Nor is it stated
that respondent No. 2 was not aware that the
application seeking previous sanction pertained
to property situated in the disturbed area as
declared under Section 3 of the Act. The
application made by the so-called tenants also
does not carry the case of the respondent any
further. The only protection which the tenants
had under the provisions of the Act is available
under Sections 13, 14 and 15 of the Act i.e. in a
situation where by reason of any riot or violence
of mob any material part of the premises in a
distubed area is wholly destroyed or rendered
substantially and permanently unfit for the
purpose for which it was let. Thus, on facts
these provisions do not apply.
8. Section 6 of the Act provides that a person
aggrieved by rejection of an application under
Section 4(2)(b)(i) or Section 5(3)(b)(i) of the Act
may prefer an appeal before the State
Government. In the present case, admittedly
the impugned order is made under Section 5(2)
of the Act. Therefore, Section 6 of the Act will
not be available to the petitioner."
33. On the issue whether the case was decided in hot
haste, what is evident from the records that have been
produced by the learned AGP that the only issue before
the authority was whether the application could have been
C/SCA/4598/2022 ORDER DATED: 21/12/2022
rejected de hors the provisions of Section 5 of the Act. The
arguments were heard on 22.11.2022 and it was not on a
issue of a nature which could detain the Secretary to
resolve a complicated question of law. Expeditious
decision need not raise a presumption that the decision is
bad.
34. Even otherwise, while considering the decision
making process in the present case, the fact that there are
revision applications vis-a-vis other revenue jurisdictions
pending before the authorities cannot be a ground for
interfering with the order. This is not germane to the issue
that deserves consideration.
35. Perusal of the order impugned in this petition
indicates that the Secretary (Appeals) has, in consonance
with the position of law, restored the permission granted
to the respondent Nos.5 to 14 of 22.6.2020 in respect of
C/SCA/4598/2022 ORDER DATED: 21/12/2022
the land in question. The order of revocation dated
9.9.2021 has rightly been set aside as not only was it
passed without hearing the private respondents but was
without authority of law.
36. For the aforesaid reasons, the petition is dismissed
with no order as to costs.
37. The original records have been handed over to the
learned AGP Mr. Rohan Shah which Mr. Shah has handed
over to the concerned officer.
(BIREN VAISHNAV, J)
VATSAL
