Gujarat High Court
Kortyarknagar Co-Operative Housing ... vs State Of Gujarat on 21 December, 2022
Author: Biren Vaishnav
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 Page 1 of 68 Downloaded on : Sat Dec 24 04:29:29 IST 2022 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.Page 2 of 68 Downloaded on : Sat Dec 24 04:29:29 IST 2022
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 Page 3 of 68 Downloaded on : Sat Dec 24 04:29:29 IST 2022 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 Page 4 of 68 Downloaded on : Sat Dec 24 04:29:29 IST 2022 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:
Page 5 of 68 Downloaded on : Sat Dec 24 04:29:29 IST 2022C/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 Page 6 of 68 Downloaded on : Sat Dec 24 04:29:29 IST 2022 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 Page 7 of 68 Downloaded on : Sat Dec 24 04:29:29 IST 2022 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 Page 8 of 68 Downloaded on : Sat Dec 24 04:29:29 IST 2022 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 Page 9 of 68 Downloaded on : Sat Dec 24 04:29:29 IST 2022 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 Page 10 of 68 Downloaded on : Sat Dec 24 04:29:29 IST 2022 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 Page 11 of 68 Downloaded on : Sat Dec 24 04:29:29 IST 2022 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 Page 12 of 68 Downloaded on : Sat Dec 24 04:29:29 IST 2022 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 Page 13 of 68 Downloaded on : Sat Dec 24 04:29:29 IST 2022 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 Page 14 of 68 Downloaded on : Sat Dec 24 04:29:29 IST 2022 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 Page 15 of 68 Downloaded on : Sat Dec 24 04:29:29 IST 2022 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 Page 16 of 68 Downloaded on : Sat Dec 24 04:29:29 IST 2022 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 Page 17 of 68 Downloaded on : Sat Dec 24 04:29:29 IST 2022 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 437
(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 Page 18 of 68 Downloaded on : Sat Dec 24 04:29:29 IST 2022 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.
Page 19 of 68 Downloaded on : Sat Dec 24 04:29:29 IST 2022C/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 Page 20 of 68 Downloaded on : Sat Dec 24 04:29:29 IST 2022 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 Page 21 of 68 Downloaded on : Sat Dec 24 04:29:29 IST 2022 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 Page 22 of 68 Downloaded on : Sat Dec 24 04:29:29 IST 2022 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 Page 23 of 68 Downloaded on : Sat Dec 24 04:29:29 IST 2022 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 Page 24 of 68 Downloaded on : Sat Dec 24 04:29:29 IST 2022 C/SCA/4598/2022 ORDER DATED: 21/12/2022 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 Page 25 of 68 Downloaded on : Sat Dec 24 04:29:29 IST 2022 C/SCA/4598/2022 ORDER DATED: 21/12/2022 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 Page 26 of 68 Downloaded on : Sat Dec 24 04:29:29 IST 2022 C/SCA/4598/2022 ORDER DATED: 21/12/2022 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, Page 27 of 68 Downloaded on : Sat Dec 24 04:29:29 IST 2022 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 Page 28 of 68 Downloaded on : Sat Dec 24 04:29:29 IST 2022 C/SCA/4598/2022 ORDER DATED: 21/12/2022 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 Page 29 of 68 Downloaded on : Sat Dec 24 04:29:29 IST 2022 C/SCA/4598/2022 ORDER DATED: 21/12/2022 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 Page 30 of 68 Downloaded on : Sat Dec 24 04:29:29 IST 2022 C/SCA/4598/2022 ORDER DATED: 21/12/2022 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 Page 31 of 68 Downloaded on : Sat Dec 24 04:29:29 IST 2022 C/SCA/4598/2022 ORDER DATED: 21/12/2022 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 Page 32 of 68 Downloaded on : Sat Dec 24 04:29:29 IST 2022 C/SCA/4598/2022 ORDER DATED: 21/12/2022 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 Page 33 of 68 Downloaded on : Sat Dec 24 04:29:29 IST 2022 C/SCA/4598/2022 ORDER DATED: 21/12/2022 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.Page 34 of 68 Downloaded on : Sat Dec 24 04:29:29 IST 2022
C/SCA/4598/2022 ORDER DATED: 21/12/2022 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 Page 35 of 68 Downloaded on : Sat Dec 24 04:29:29 IST 2022 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, Page 36 of 68 Downloaded on : Sat Dec 24 04:29:29 IST 2022 C/SCA/4598/2022 ORDER DATED: 21/12/2022 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 Page 37 of 68 Downloaded on : Sat Dec 24 04:29:29 IST 2022 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 Page 38 of 68 Downloaded on : Sat Dec 24 04:29:29 IST 2022 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 Page 39 of 68 Downloaded on : Sat Dec 24 04:29:29 IST 2022 C/SCA/4598/2022 ORDER DATED: 21/12/2022 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 Page 40 of 68 Downloaded on : Sat Dec 24 04:29:29 IST 2022 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 Page 41 of 68 Downloaded on : Sat Dec 24 04:29:29 IST 2022 C/SCA/4598/2022 ORDER DATED: 21/12/2022 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, Page 42 of 68 Downloaded on : Sat Dec 24 04:29:29 IST 2022 C/SCA/4598/2022 ORDER DATED: 21/12/2022 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 Page 43 of 68 Downloaded on : Sat Dec 24 04:29:29 IST 2022 C/SCA/4598/2022 ORDER DATED: 21/12/2022 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-Page 44 of 68 Downloaded on : Sat Dec 24 04:29:29 IST 2022
C/SCA/4598/2022 ORDER DATED: 21/12/2022 (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."
Page 45 of 68 Downloaded on : Sat Dec 24 04:29:29 IST 2022C/SCA/4598/2022 ORDER DATED: 21/12/2022 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, Page 47 of 68 Downloaded on : Sat Dec 24 04:29:29 IST 2022 C/SCA/4598/2022 ORDER DATED: 21/12/2022 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 Page 48 of 68 Downloaded on : Sat Dec 24 04:29:29 IST 2022 C/SCA/4598/2022 ORDER DATED: 21/12/2022 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 Page 49 of 68 Downloaded on : Sat Dec 24 04:29:29 IST 2022 C/SCA/4598/2022 ORDER DATED: 21/12/2022 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 Page 50 of 68 Downloaded on : Sat Dec 24 04:29:29 IST 2022 C/SCA/4598/2022 ORDER DATED: 21/12/2022 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 Page 51 of 68 Downloaded on : Sat Dec 24 04:29:29 IST 2022 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 Page 52 of 68 Downloaded on : Sat Dec 24 04:29:29 IST 2022 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 Page 53 of 68 Downloaded on : Sat Dec 24 04:29:29 IST 2022 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 Page 54 of 68 Downloaded on : Sat Dec 24 04:29:29 IST 2022 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
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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 Page 56 of 68 Downloaded on : Sat Dec 24 04:29:29 IST 2022 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, Page 57 of 68 Downloaded on : Sat Dec 24 04:29:29 IST 2022 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 Page 58 of 68 Downloaded on : Sat Dec 24 04:29:29 IST 2022 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 Page 59 of 68 Downloaded on : Sat Dec 24 04:29:29 IST 2022 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 Page 60 of 68 Downloaded on : Sat Dec 24 04:29:29 IST 2022 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 Page 61 of 68 Downloaded on : Sat Dec 24 04:29:29 IST 2022 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, Page 62 of 68 Downloaded on : Sat Dec 24 04:29:29 IST 2022 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:
"3. On 14th December, 2001, respondent No. 2in purported exercise of power under Section Page 63 of 68 Downloaded on : Sat Dec 24 04:29:29 IST 2022 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 Page 64 of 68 Downloaded on : Sat Dec 24 04:29:29 IST 2022 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 Page 65 of 68 Downloaded on : Sat Dec 24 04:29:29 IST 2022 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 Page 66 of 68 Downloaded on : Sat Dec 24 04:29:29 IST 2022 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 Page 67 of 68 Downloaded on : Sat Dec 24 04:29:29 IST 2022 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 Page 68 of 68 Downloaded on : Sat Dec 24 04:29:29 IST 2022