Gujarat High Court
Bharatkumar Shankarlal Somani vs State Of Gujarat & on 19 June, 2017
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
C/SCA/11362/2017 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 11362 of 2017
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BHARATKUMAR SHANKARLAL SOMANI....Petitioner(s)
Versus
STATE OF GUJARAT & 1....Respondent(s)
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Appearance:
MR GM JOSHI, ADVOCATE for the Petitioner(s) No. 1
MR UTKARSH SHARMA, AGP - ADVANCE COPY SERVED TO GP/PP for the
Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 19/06/2017
ORAL ORDER
1 By this writ application under Article 226 of the Constitution of India, the writ applicant, a resident of Vadodara, has prayed for the following reliefs:
"(18)(A) This Hon'ble Court may be pleased to hold and declare that the impugned actions of the respondent No.2 - Deputy Collector, Vadodara of illegally and unconstitutionally delaying and not deciding the petitioner's application dated 03/09/2016 for permission under Section 4(1) of the Gujarat Prohibition of Transfer of Immovable Properties and Provision for Protection of Tenants from Evacuation from Premises in Disturbed Area Act, 1991 is illegal and unconstitutional and thereby be pleased to grant cost and thereby be pleased to allow petitioner's application dated 03/09/2016 in the interest of justice.
(B) This Hon'ble Court may be pleased to direct the respondent no.2 -
Deputy Collector to grant immediately and forthwith and/or disposed of the petitioner's application dated 03/09/2016 within a week since in pursuance to the said application positive opinion dated 23/09/2016 and 08/12/2017 are issued by the Mamlatdar officer and further Police authorities have also given positive opinion.
(C) This Hon'ble Court may be pleased to pass necessary order reprimanding and/or condemning the respondent no.2 - Deputy Collector Page 1 of 6 HC-NIC Page 1 of 6 Created On Tue Jun 20 01:20:05 IST 2017 C/SCA/11362/2017 ORDER for not discharging his statutory duties as provided under Section 5(3) of the Gujarat Prohibition of Transfer of Immovable Properties and Provision for Protection of Tenants from Evacuation from Premises in Disturbed Area Act, 1991 and taking illegal and unconstitutional proceeding beyond the scope and jurisdiction of the Act.
(D) Pending admission hearing and till final disposal of present petition, this Hon'ble Court may be pleased to grant interim relief directing the respondent no.2 - Deputy Collector to grant immediately and forthwith and/or dispose of the petitioner's application dated 03/09/2016 within a week since in pursuance to the said application positive opinion dated 23/09/2016 and 08/12/2017 are issued by the Mamlatdar officer and further police authorities have also given positive opinion.
(E) This Hon'ble Court may be pleased to award the costs of present petition all throughout.
(F) This Hon'ble Court may be pleased to grant such other and further relief/s as may be deemed fit, just and proper in the facts and circumstances of the case."
2 The writ applicant purchased a parcel of agricultural land bearing survey No.205, Final Plot No.36 of T.P. Scheme No.37 at village:
Tandalja, Taluka: Vadodara, District: Vadodara, by a registered sale deed dated 27th December 2006. The land in question admeasured 4431 sq. mtrs. Consequent upon the said registered sale deed referred to above, a mutation entry No.3442 came to be effected in the record of rights. The writ applicant, as on date, is the lawful owner of the property in question. He wants to sale this land. Since this area where the land is situated under the provisions of the Gujarat Prohibition of Transfer of Immovable Property and Provision for Protection of Tenants from Evacuation from Premises in Disturbed Area Act, 1991. The writ applicant is obliged in law to seek necessary permission from the authorities concerned. To put it in other words, the area where the land is situated has been notified as a protected area under the Act, 1991. Indisputably, the writ applicant has applied with the Deputy Collector, Vadodara city in this regard by filing an application dated 3rd September Page 2 of 6 HC-NIC Page 2 of 6 Created On Tue Jun 20 01:20:05 IST 2017 C/SCA/11362/2017 ORDER 2016.
3 Section 4(1) of the Act, 1991 reads as under:
"4(1) Notwithstanding anything contained in any other law for the time being in force but subject to subsection (2) and (3), all transfers of immovable property situate in a disturbed area made during the period commencing on the 18th March, 1985 and ending on the day immediately before the commencement of this Act, 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 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 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 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 purpose 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 included allowing the possession of such property to be taken or retained in part performance of a contract of the nature referred to in section 58A of the Transfer of Property Act, 1882."
4 Section 5 of the Act, 1991 reads as under:
Page 3 of 6HC-NIC Page 3 of 6 Created On Tue Jun 20 01:20:05 IST 2017 C/SCA/11362/2017 ORDER "5(1) Notwithstanding anything contained in any other law for the time being in force but subject to provisions of subsection (3), no immovable property situate in a disturbed area shall, during the period commencing on the commencement of this Act and ending on the 31st March, 1987, 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 immovable property situate 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 subsection (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 proposal transfer of immovable property."
5 The grievance voiced by the writ applicant is that although he filed the application seeking the necessary permission way back in the month of September 2016, yet the authority concerned has not taken any appropriate decision in this regard. A formal inquiry has been initiated, but the inquiry is not proceeding in the right direction. The learned counsel appearing for the writ applicant would submit that what is germane for grant of valid permission under the provisions of the Act are two considerations: 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 or not.
6 The learned counsel appearing for the writ applicant submits that Page 4 of 6 HC-NIC Page 4 of 6 Created On Tue Jun 20 01:20:05 IST 2017 C/SCA/11362/2017 ORDER what is sought to be inquired is whether in future the law and order situation would be jeopardized, whether the proportion of Hindu communities majority, minority would be affected and whether the people residing in the neighborhood would be affected. According to the learned counsel, these are all extraneous consideration under the provisions of the Act, 1991.
7 The learned counsel appearing for the writ applicant places on record a notice issued by his client as regards the hearing fixed by the Deputy Collector, Vadodara city on 29th June 2017 at 13:00 hours in the office of the Deputy Collector.
8 Mr. Utkarsh Sharma, the learned Assistant Government Pleader appearing for the State submits that the Deputy Collector has yet to take an appropriate decision and he is otherwise also obliged to take a decision at the earliest and convey to the writ applicant. Mr. Sharma submits that on the date fixed, the authority shall try his best to complete the hearing i.e. the inquiry and take an appropriate decision in accordance with law.
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.
Page 5 of 6HC-NIC Page 5 of 6 Created On Tue Jun 20 01:20:05 IST 2017 C/SCA/11362/2017 ORDER 11 The learned counsel appearing for the writ applicant is right to a certain extent as to why a member of the Hindu Mahasabha, Vadodara city should also be heard in this regard. What he is to do with the grant of the permission, more particularly, when two things are necessary to be taken care of, as provided in Section 5(3)(b) of the Act, 1991. Why unnecessary complicated the issue?
12 In view of the above, this writ application is disposed of with a direction to the Deputy Collector, Vadodara city to see to it that the hearing takes place on 29th June 2017, as scheduled, and the same is concluded on that date. Whatever necessary information at the end of the writ applicant as well as the purchaser, the same shall be obtained from them at the earliest. Let the decision be taken by the Deputy Collector within two weeks from the date of conclusion of the hearing as fixed and communicate the same to the writ applicant in writing. If the writ applicant is dissatisfied in any manner with the decision that the Deputy Collector would take, then it is always open for him to avail of an appropriate legal remedy before the appropriate forum in accordance with law.
13 With the above, this writ application is disposed of. Direct service is permitted.
(J.B.PARDIWALA, J.) chandresh Page 6 of 6 HC-NIC Page 6 of 6 Created On Tue Jun 20 01:20:05 IST 2017