Gujarat High Court Upholds Property Transfer To Muslim Man In 'Disturbed Area', Says Act Meant To Curb Distress Sales Not Bonafide Transactions

Justice Vaibhavi Nanavati said, “Once the sale is held to be bonafide, no interference is called for to exercise extraordinary jurisdiction under Article -226 of the Constitution of India. Sections 4 and 5 of the Act provide that when the question of either giving post-facto sanction to such sale or a permission to sale is concerned, the Collector is required 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 any law and order problem but to decide whether the sale is a distress sale so as to migrate from such an areas by any manner getting away and selling his property for whatever consideration under fear,” Justice Nanavati added.

Court also held that considering the Scheme of the Disturbed Areas Act, the writ-applicants were not required to be heard before approving the sale.

The five individuals filing writ petitions, namely Harshil A Shah, Harsh Mrugendra Rana, Ankur Sureshchandra Agrawal, Santosh Ramandana, and Girishbhai Mahendra Pathak, objected to the transaction on the basis of communal considerations.

The petitioners were dissatisfied with the decisions made by the competent authority under the Gujarat Prohibition of Transfer of Immovable Property and Provisions for Protection of Tenants from Eviction from Premises in Disturbed Areas Act, 1991.

Through these writ applications, the petitioners sought directives to annul and invalidate the contested order issued by the Deputy Collector, (respondent no.3). Additionally, they requested the annulment of any subsequent actions taken by the respondents in response to the challenged order.

The petitioners further prayed to stay on any further operation, implementation, and execution of the challenged order, urging the court to direct respondents 4 to 6 to maintain the status quo regarding the disputed land.

The writ-applicants contended the impugned order passed by the Deputy Collector in an application preferred by the respondent No.4 whereby the Deputy Collector allowed the said application preferred by the District Collector (respondent No.2) seeking permission to sell the disputed land.

According to the writ-applicants, the permission granted by the Deputy Collector was purportedly under the provisions of Section 5 of the Gujarat Prohibition of Transfer of Immovable Property and Provisions for Protection of Tenants from Eviction from Premises in Disturbed Areas Act, 1991. The petitioners argued that the impugned order is in violation of Section 5 of the Act. They claim that the Deputy Collectorbased this decision on the opinions of both the Additional Police Commissioner, Vadodara, and the Mamlatdar, Vadodara.

The writ-applicants argued that the aforementioned opinions were rendered by competent authorities relying on flawed panchkyas, which were prepared by the Talati using inaccurate statements obtained during the inquiry conducted by the Deputy Collector. They asserted that the impugned order was issued by the Deputy Collector based on an inquiry that was inherently faulty.

Notably, the writ-applicants, who were neighbors, had raised objections to the validity of the inquiry conducted by the respondent – Collector. Consequently, the writ-applicants approached the High Court in response to the permissions granted during the contested inquiry.

The conflict emerged when Gitaben Amit Goradia sold her bungalow, situated at Kesarbaug Society on Vasna Tandalja road, to Fezel Fazlani and Zinat Fajlani in August 2019, with approval from the deputy collector.

Despite the transaction being conducted at a fair price and with the consent of the parties involved, objections arose from members of the residential society. The dispute stemmed from the Disturbed Areas Act, which prohibits the sale of property to individuals of a different religious community in an area dominated by another religious community, unless every immediate neighbor of the property agrees to the deal.

In December 2019, the High Court intervened to uphold the validity of the property transaction, overturning the special secretary's revenue department (SSRD) decision that deemed the sale non-maintainable after the registration of the sale deed.

In June 2020, Fazlani sought to have his and his family members' names recorded in the property card through the city survey superintendent, in line with the registered sale deeds. However, the application was left pending. By December 2020, the petitioners also requested permission from the Vadodara Municipal Corporation (VMC) to proceed with construction on the bungalow, which was granted.

Nevertheless, in June 2021, the VMC issued an order under the Gujarat Provincial Municipal Corporation Act, halting further construction on the plot by Fazlani. The directive was based on pending litigation before the High Court concerning the property transfer.

The Court said, “Having considered the provisions of the Act and position of law as referred above and the facts of the Special Civil Application No.20840 of 2019 and Special Civil Application No.20839 of 2019 the sale in question between the respondents No.4, 5 and 6 and respondents No.4 to 7 respectively is by free will and for a fair consideration of the immovable property to be transferred and after having been granted permission from the competent authority under Section 5 of the Disturbed Areas Act.”

“The same having been subject matter of challenge in the earlier round of litigation and the writ applicants herein having challenged the same and having withdrawn the proceedings earlier also the present writapplications being devoid of merit are required to be dismissed and the same are dismissed. Since the main writ-applications are rejected, the civil application also stands disposed of,” the Court concluded.

Appearance: Mr Sp Majmudar(3456) For The Petitioner(S) No. 1,2,3,4,5 Rushabh H Munshaw(8958) For The Petitioner(S) No. 1,2,3,4,5 Mr Mtm Hakim With Mr Mohmedsaif Hakim(5394) For The Respondent(S) No. 5,6 Mr Meet Thakker With Ms Megha Jani(1028) For The Respondent(S) No. 4 Ms Jyoti Bhatt, Agp For The Respondent(S) No. 1,2,3

LL Citation: 2023 LiveLaw (Guj) 182

Case Title: Harshil A Shah Versus State Of Gujarat

Case No.: R/Special Civil Application No. 20840 Of 2019