Gujarat High Court
Onali Ezazuddin Dholkawala vs State Of Gujarat on 9 March, 2020
Author: Biren Vaishnav
Bench: Biren Vaishnav
C/SCA/13041/2019 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 13041 of 2019
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE BIREN VAISHNAV
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1 Whether Reporters of Local Papers may be allowed to NO
see the judgment ?
2 To be referred to the Reporter or not ? NO
3 Whether their Lordships wish to see the fair copy of the NO
judgment ?
4 Whether this case involves a substantial question of law NO
as to the interpretation of the Constitution of India or any
order made thereunder ?
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ONALI EZAZUDDIN DHOLKAWALA
Versus
STATE OF GUJARAT
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Appearance:
MR MTM HAKIM, ADVOCATE with MR MOHMEDSAIF HAKIM(5394) for the
petitioners(s) No. 1,2
MR.K.M.ANTANI, AGP for the Respondent(s) No. 1,2
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CORAM: HONOURABLE MR.JUSTICE BIREN VAISHNAV
Date : 09/03/2020
ORAL JUDGMENT
1. In this petition under Article 226 of the Constitution of India, the petitioners have challenged the order dated 30.01.2017 passed by the Deputy Collector, Vadodara, so confirmed by the Secretary, Revenue Department (Appeals), Page 1 of 22 Downloaded on : Sun Jun 14 11:46:10 IST 2020 C/SCA/13041/2019 JUDGMENT on 13.06.2018. By the aforesaid orders, the petitioners' application for prior permission for purchase of the property made under Section 5 of the Gujarat Prohibition of Transfer of Immovable Property and Provisions of Tenants from Eviction from Premises in Disturbed Areas Act, 1991 (hereinafter to be referred to as 'the Disturbed Areas Act' for short) has been rejected.
2. Facts in brief are as under:
2.1 The property in question is a property situated at City Survey No.160, TIKA No.18/3, Vibhag-A of Vadodara City. The property is of the ownership of one Shri Dinesh Hiralal Modi and Shri Deepakbhai Hiralal Modi (hereinafter to be referred to as 'the sellers' for short).
2.2 It is the case of the petitioners that the intended sellers wanted to transfer the property in favour of the petitioners. They therefore executed sale deed. Such sale deed was presented before the Sub-Registrar for registration.
It was at that point of time that the parties noticed that since the area in which the property is situated is declared as "disturbed area", prior permission of the Deputy Collector under the Disturbed Areas Act was necessary.
2.3 Accordingly, the petitioners preferred an application under Section 5(3)(c) of the Disturbed Areas Act to the Deputy Collector, Vadodara. The application so made is at page 26 of the paper-book of the petition. Such an application was made in the prescribed format. Under Rule 4(1) of the Rules under the Disturbed Areas Act, the application was made Page 2 of 22 Downloaded on : Sun Jun 14 11:46:10 IST 2020 C/SCA/13041/2019 JUDGMENT accompanied by the sellers statement, the sellers' affidavit and the purchasers' statement and the affidavit of the purchasers. The statements and the affidavit made both by the sellers and the purchasers respectively unequivocally stated that the sale of property was with free consent and the consideration of a fair value. This was so made as it was a requisite according to the petitioners, under Section 5 of the Disturbed Areas Act.
3. It appears that on the applications being made, by a letter dated 01/06.08.2016, the Deputy Collector, Vadodara, addressed a letter to the Police Commissioner of City of Vadodara. By the aforesaid letter, a focused inquiry was sought to be made at the hands of the Police Commissioner on the following points:
(I) Whether the sale in question is with free consent? (II) Is there a likelihood of a law and order problem in future ?
(III) Is the sale likely to affect the balance in the majority Hindu/minority Muslim strength ?
(IV) Is the sale likely to affect the neighborhood ?
A report was called for.
4. The Police Commissioner, Vadodara, vide letter dated 09.08.2016 requested the Deputy Commissioner of Police, Vadodara, to make inquiry and submit the report. A report was accordingly submitted by the Assistant Police Commissioner on 09.08.2016. On 19.09.2016, the Talati and the Circle Officer recorded the statements of the transferor, Page 3 of 22 Downloaded on : Sun Jun 14 11:46:10 IST 2020 C/SCA/13041/2019 JUDGMENT transferee and the people from the neighborhood.
5. Mr.MTM Hakim learned advocate for the petitioners invited attention of this Court to the statements so recorded of the sellers, petitioners, the neighborhood and also to the panchkyas made. When read collectively, what was borne out from these statements was that the sale of property i.e. commercial shops was with pre-consent, the sale was on a fair value and even the neighbors confirmed that the sale has been made without any detriment to the disturbance of peace in the area. Accordingly, what is apparent is that no one objected to the transfer of the property between the transferor and the transferee. A report was submitted on 20.12.2016. The Mamlatdar submitted report on 15.12.2016 opining that nothing is clear with regard to the sale in question. It appears that since the inquiry and the letter that inquired into the same, was addressed to the Police Commissioner, statements of the sellers and the purchasers were recorded by the police, based on which, the Police Inspector by a communication dated 26.12.2016 informed the Police Commissioner that though there was no objection from the neighborhood to the sale of the shops, however, the area was in a community where the majority of the neighborhood were Muslims, the Hindus were in minority and the sale of properties in such a situation to a Hindu, could develop into a law and order problem and therefore he opined against the sale. The Deputy Commissioner of Police by a communication dated 02.01.2017 accordingly confirmed the same by addressing a letter to the Police Commissioner. It is on this basis that the Deputy Collector passed an order on 30.01.2017. The order of the Deputy Collector at page 24 Page 4 of 22 Downloaded on : Sun Jun 14 11:46:10 IST 2020 C/SCA/13041/2019 JUDGMENT indicates that the application of the petitioners for prior permission was considered. The Deputy Collector opined that looking to the Mamlatdar's opinion and Police Commissioner's report, it was not possible to accede to the request of the petitioners. Evidently, what went into the decision making process in the Deputy Collector coming to such a conclusion was that a law and order problem was foreseen as the sale was to a Hindu of a shop which was predominantly in the area of Muslim population.
6. Mr.Hakim learned counsel for the petitioners taking me through the facts of the case as narrated herein above, assailed the orders of the Deputy Collector and the Special Secretary on various grounds. He would submit that from the statements of the seller and the purchaser, their affidavits, from the statements of the neighborhood, it was not in dispute that the sale was for a fair consideration and with free- consent. These two parameters were the only yardsticks on which it was for the authorities to consider the application as required under the provisions of the Disturbed Areas Act. The Collector could not go beyond these parameters and being influenced by the reasons so assigned in the impugned orders i.e. the sale was of a shop to a Hindu in a dominated Muslim area and it would therefore create a law and order situation. He invited my attention to the provisions of the Disturbed Areas Act. Inviting the attention of the Court to the provisions of Sections 4 and 5 of the Act, Mr.Hakim would therefore submit that reading such provisions, it is evident that the only scope for the authorities to see was whether there was free- consent of the transferor and the transferee for a fair value of the immovable property.
Page 5 of 22 Downloaded on : Sun Jun 14 11:46:10 IST 2020C/SCA/13041/2019 JUDGMENT
7. In support of his submissions, Mr.Hakim relied on the decisions rendered by this Court in case of Padmaben Rasiklal Mehta v. State of Gujarat passed in Special Civil Application No.104 of 1996 in context of Section 4 of the Disturbed Areas Act. He would submit that unequivocally this Court has held that the only aspect while deciding the application is that the transfer is for a fair value and with free consent and no matters other than those can be inquired into. Reliance was also placed on the decision in the case of Rajnikant Kantilal Shroff v. State of Gujarat passed in Special Civil Application No.107 of 1996.
8. Reliance was also placed on the decision in the case of SNA Infraprojects Private Limited v. Sub Registrar reported in 2011 (3) GLH 15. Reliance was also placed on the decision of this Court in case of Bharatkumar Shankarlal Somani v. State of Gujarat and Anr. passed in Special Civil Application No.11362 of 2017.
9. In short, by relying on these judgments, Mr.Hakim submitted that it was only fair value and free consent that was necessary to be taken into consideration and if that is the sole ground for a decision making process, the statements of neighbors would not be necessary to be recorded.
10. Mr.K.M.Antani learned AGP invited the attention of this Court to the definitions of "disturbed area". He also invited the attention of this Court to Section 3 and submitted that when the purpose of the Act was evident from reading the section i.e. having regard to the intensity and duration of a Page 6 of 22 Downloaded on : Sun Jun 14 11:46:10 IST 2020 C/SCA/13041/2019 JUDGMENT riot or violence of a mob, if in the opinion of the State, there is a question of public order, the same shall be declared as a disturbed area. Mr.Antani would therefore submit that once the spirit is to curb riots and see that public order is maintained in the decision making process if that aspect has been considered by the authorities, the order cannot be faulted.
11. Mr.Antani also took the Court through the provisions of Chapter-12 of the Bombay Land Revenue Code and submitted that scope of the inquiry, though, was in the context of the Gujarat Land Revenue Code, any such inquiries and the nature of inquiries so conducted under Sections 195 and 196 would necessarily involve police authorities. He relied on the decision of the Supreme Court in case of Khargram Panchayat Samity and Ors. v. The State of West Bengal and Ors. reported in 1987 (3) SCC 82. He invited the attention of this Court to para 4 thereof in support of his submission that when in exercise of powers under a particular Act, there are incidental and consequential actions, looking to the object of the Disturbed Areas Act, the considerations and the scope of the inquiry of the authorities cannot be faulted.
12. Considering the submissions made by the learned advocates for the respective parties, it will be in the fitness of things to outline the legal provisions of the Disturbed Areas Act. The term 'disturbed area' is defined in Section 2(a) which reads as under:
"2(a) "disturbed area" means an area declared as disturbed area under section"Page 7 of 22 Downloaded on : Sun Jun 14 11:46:10 IST 2020
C/SCA/13041/2019 JUDGMENT
13. The term 'fair value' is also defined as under:
"2(b) "fair value" in relation to immovable property in disturbed areas means such value of the property as approximate the market value of such property;"
14. Sections 3 to 5 of the Declaration of disturbed areas read as under:
"3. Declaration of disturbed area. - (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 (XLV of 1860). (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 (Bombay LVII of 1947) to such area, as amended by this Act.
4. Certain transfers of immovable property to be void. - (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 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 sub-section (1) may, within the prescribed period and in the prescribed form, make an Page 8 of 22 Downloaded on : Sun Jun 14 11:46:10 IST 2020 C/SCA/13041/2019 JUDGMENT 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 (Bombay V of 1879) and after giving an opportunity to the transferor and the transferee to be heard and after considering a£y 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 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. Prohibition of transfer of immovable property in disturbed areas. - (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 immovable property situated in a Page 9 of 22 Downloaded on : Sun Jun 14 11:46:10 IST 2020 C/SCA/13041/2019 JUDGMENT 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 (Bombay V of 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."
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.
Page 10 of 22 Downloaded on : Sun Jun 14 11:46:10 IST 2020C/SCA/13041/2019 JUDGMENT 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 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 Page 11 of 22 Downloaded on : Sun Jun 14 11:46:10 IST 2020 C/SCA/13041/2019 JUDGMENT 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.
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 Page 12 of 22 Downloaded on : Sun Jun 14 11:46:10 IST 2020 C/SCA/13041/2019 JUDGMENT 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 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, 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 Page 13 of 22 Downloaded on : Sun Jun 14 11:46:10 IST 2020 C/SCA/13041/2019 JUDGMENT 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 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 Page 14 of 22 Downloaded on : Sun Jun 14 11:46:10 IST 2020 C/SCA/13041/2019 JUDGMENT 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 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 Page 15 of 22 Downloaded on : Sun Jun 14 11:46:10 IST 2020 C/SCA/13041/2019 JUDGMENT "disturbed area" for a specified period, having regard to the intensity and duration of riot or mob- violence 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 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 sub- section (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 sub- section (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 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.Page 16 of 22 Downloaded on : Sun Jun 14 11:46:10 IST 2020
C/SCA/13041/2019 JUDGMENT 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 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.
Page 17 of 22 Downloaded on : Sun Jun 14 11:46:10 IST 2020C/SCA/13041/2019 JUDGMENT (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 Sub- Registrar 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, 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, Page 18 of 22 Downloaded on : Sun Jun 14 11:46:10 IST 2020 C/SCA/13041/2019 JUDGMENT the document is directed to be registered.
72. Appeal to Registrar from orders of Sub- Registrar 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 Sub- Registrar 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 Sub- Registrar refuses to 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 Page 19 of 22 Downloaded on : Sun Jun 14 11:46:10 IST 2020 C/SCA/13041/2019 JUDGMENT 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-
(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
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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."
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 post- facto 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 Page 21 of 22 Downloaded on : Sun Jun 14 11:46:10 IST 2020 C/SCA/13041/2019 JUDGMENT consideration under fear.
16. Viewed in this context and considering all the decisions rendered by this Court, relevant paragraphs of which have been reproduced earlier, now, what is to be seen is that in the context of the inquiry that went at a tangent from the intention of the Act, focused on whether it would create a law and order problem and disturb the equilibrium in the population in the minority community by virtue of a sale, appreciating the law and order problem based on the police verification, the Deputy Collector and the Special Secretary have rejected the application seeking permission for a sale/purchase of the property. This was clearly contrary to the provisions of the Act.
17. Accordingly, the order of the Deputy Collector, Vadodara dated 30.01.2017, so confirmed by the order of the Special Secretary-respondent no.1 dated 13.06.2018 are quashed and set aside. The application made by the petitioners under Section 5(3)(a) of the Disturbed Areas Act is allowed and the permission as prayed for by the petitioners is deemed to have been granted since the orders under challenge are quashed and set aside.
18. The petition is allowed accordingly.
(BIREN VAISHNAV, J) ANKIT SHAH Page 22 of 22 Downloaded on : Sun Jun 14 11:46:10 IST 2020