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2018 DIGILAW 1237 (GUJ)

Messrs Ali Enterprises v. State of Gujarat

2018-11-28

VIPUL M.PANCHOLI

body2018
JUDGMENT : 1. This petition is filed under Article 226 of the Constitution of India in which the petitioners have prayed that the order dated 31.7.2017 passed by the Deputy Collector i.e. respondent no.3 be quashed and set aside. 2. Rule. Learned Assistant Government Pleader Ms. Shruti Pathak waives service of notice of rule for respondents. Heard learned advocate Mr. Mangukiya for the petitioners and learned Assistant Government Pleader Ms. Pathak for the respondents. 3. Learned advocate for the petitioners contended that the petitioner nos.1 and 6 are partnership firms whereas petitioner nos.2 and 5 as well as the petitioner nos.7 and 8 are the partners of the partnership firms. Petitioner nos.1 and 6 jointly purchased the property bearing city survey no.2021/34 of city survey seat no.41 of Shahpur Ward No.2 admeasuring 1038.84 sq.mtrs. from a cooperative institution namely Majoor Sahakari Bank Ltd., which was in liquidation and with approval of Registrar, Co.op.Society. The said bank purchased the property from its erstwhile owner Sarabhai by sale deed which was executed on 15.11.1962. Learned advocate for the petitioners referred the averments made in the petition and thereafter submitted that the petitioner nos.1 and 6 purchased the property in question by registered sale deed. At that time, the permission under Section 5 of the Gujarat Prohibition of Transfer of Immovable Property and Provision for Protection of Tenants from Eviction from Premises in Disturbed Areas Act, 1986 (hereinafter referred to as 'the Act of 1986') was sought for by the concerned party. The said permission was granted by respondent no.3 by an order dated 16.5.2013 on certain terms and conditions. Learned advocate Mr.Mangukiya has referred to the copy of the said order which is produced at page no.40 of the compilation. 4. It is, thereafter, contended that now the petitioners want to sell the property in question and therefore the permission of the respondent no.3 was sought for under the provisions of the Act of 1986. However, the respondent no.3 refused to grant such permission by impugned order dated 31.7.2017 on the ground that Special Civil Application No.1226 of 2011 with regard to the property in question is pending before this Court. At this stage, learned advocate has once again referred to the order dated 16.5.2013 by which the respondent no.3 granted permission for the same subject property. At this stage, learned advocate has once again referred to the order dated 16.5.2013 by which the respondent no.3 granted permission for the same subject property. In the said order also, respondent no.3 referred that Special Civil Application No.1226 of 2011 is pending before this Court. In spite of that, the permission was granted subject to outcome of that petition. However, in the impugned order, instead of imposing such condition, permission is denied. 5. Learned advocate Mr. Mangukiya would further contend that while passing the impugned order dated 31.7.2017, the respondent no.3 did not grant opportunity of hearing to the petitioners and he has not followed the provisions contained in Section 5 of the Act of 1986. He, therefore, urged that the impugned order passed by the respondent no.3 be quashed and set aside and direction be given to the respondent no.3 to grant opportunity of hearing to the petitioners and pass an order afresh. 6. On the other hand, learned Assistant Government Pleader Ms. Pathak has opposed this petition and referred to the impugned order, copy of which is produced at page 93 of the compilation. It is contended that the impugned order has been passed by respondent no.3 after obtaining the opinion from the concerned Police Inspector. It is further submitted that when Special Civil Application No.1226 of 2011 is pending before this court with regard to the property in question, no error is committed by respondent no.3 while denying the permission to the petitioners. It is, therefore, urged that this petition be dismissed. 7. Having heard learned advocates appearing for the parties and having gone through the material produced on record, it is revealed that the petitioners purchased the property in question in the year 2013 and at that time, permission under Section 5 of the Act of 1986 was obtained from the respondent no.3. If the order dated 16.5.2013 passed by respondent no.3 is carefully examined, it is revealed that while granting permission, certain conditions were imposed by respondent no.3. One of the conditions is that the said permission is granted subject to outcome of Special Civil Application No.1226 of 2011 pending before this Court. If the order dated 16.5.2013 passed by respondent no.3 is carefully examined, it is revealed that while granting permission, certain conditions were imposed by respondent no.3. One of the conditions is that the said permission is granted subject to outcome of Special Civil Application No.1226 of 2011 pending before this Court. However, it is relevant to note that now the petitioners want to sell the property in question and when the permission of respondent no.3 is asked for, he has denied the permission on the ground that Special Civil Application No.1226 of 2011 is pending before this Court and till the said petition is disposed off, the permission cannot be granted. This Court is of the view that such a reasoning recorded by respondent no.3 is erroneous and deserves to be quashed and set aside. 8. At this stage, the provisions contained in Section 5 of the Act of 1986 is also required to be referred to, which reads as under: “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 situate in a disturbed area shall, during the period commencing on the commencement of this Act and ending on the 31st March, 1987, be transferred except with the previous sanction of the Collector. (2) Any transfer of immovable property made in contravention of sub-section (1) shall be null and void. (3) (a) Any person intending to transfer immovable property situate in a disturbed area may, within the prescribed period and in the prescribed form, make an application to the Collector for obtaining previous sanction under 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.” 9. From the aforesaid provision, it is clear that when the person intends to transfer the immovable property situated in a disturbed area, he has to obtain the previous permission of the competent authority. The procedure is prescribed under the said provision. It is further stated in Section 5(3)(b) of the Act of 1986 that on receipt of an application from the concerned person by the Collector, he shall hold formal inquiry in the manner provided by the Bombay Land Revenue Code and after giving an opportunity of hearing to the concerned applicant and after considering the evidence produced before him, he has to 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. 10. From the impugned order passed by the respondent no.3, it is clear that while passing the said order, the respondent no.3 had not granted any opportunity of hearing to the petitioners nor there is any reference with regard to formal inquiry conducted by the said officer. It is required to be noted that the concerned authority is required to examine whether the seller has given free consent for the transfer of the said property or not and a fair value of the immovable property is mentioned in the deed of transfer or not? The respondent no.3 has not examined all these aspects and rejected the application only on the ground of pendency of the petition before this Court. 11. In view of the aforesaid discussion, this petition is allowed. The impugned order dated 31.7.2017 passed by respondent no.3 is quashed and set aside. The respondent no.3 is hereby directed to decide the application submitted by the petitioners/concerned applicants for transfer of the property in question afresh within a period of two weeks from the date of receipt of this order, considering the provisions contained in Section 5 of the Act of 1986 and also the order dated 16.5.2013 passed by respondent no.3 granting permission to transfer the property in favour of the petitioners. 12. Rule is made absolute. Direct service today is permitted.