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Gujarat High Court · body

2022 DIGILAW 1080 (GUJ)

Shaileshbhai Manilal Rana v. State of Gujarat

2022-09-27

NIRZAR S.DESAI

body2022
ORDER : 1. Considering the fact that issue involved in all these petitions are identical with the consent of parties all the four petitions are taken up for hearing together. 2. Common issue involved in these petitions are that when an application was preferred by the parties seeking prior permission for transfer of the immovable property under the provisions of Tenants from Eviction from Premises in Disturbed Areas Act, 1991 and Rules framed thereunder, the Special Secretary, Revenue Department has while deciding various application considered the Appeal preferred under the provisions of the Act by considering those Appeals to be under Section 4 of the Act and which provides for post facto approval, and therefore, in respect of the aforesaid grievance, all these matters are taken up together. 3. As far as Special Civil Application No.14401 of 2022 is concerned, according to learned advocate Mr. Hakim, the aforesaid petitions are preferred against the order passed by the Collector deciding the application preferred by the petitioners under Section 5 as if the said application preferred under Section 4 of the Act, and therefore, in view of this common issue, all the matters are taken up together. 4. For the sake of convenience facts of Special Civil Application No.2129 of 2022 is stated and as the same is considered to be lead matter. 5. The present petitioner Nos.1 to 6 are the sellers of the property situated at City Survey No.21/55, Tika No.9/4, Vibhag B of Nagarwada, Kumbharwada, Vadodara City, District – Subdistrict Vadodara, and the petitioner Nos.7 and 8 are the proposed purchaser of the aforesaid property. 6. It is the case of the petitioners that on 31.08.2019, petitioner Nos.1 to 6 executed Registered Agreement to sell for the said property for the total consideration of Rs.20,00,000/- and out of which substantial amount of Rs.16,00,000/- were paid to petitioner Nos.1 to 6 by petitioner Nos.7 and 8. 7. Since the Notification in respect of Disturbed Areas Act was already enforced on 13.09.2019. The present petitioners preferred an application under Section 5(3)(c) of the Disturbed Areas Act to seek prior permission in respect of the aforesaid proposed sell transaction. 8. 7. Since the Notification in respect of Disturbed Areas Act was already enforced on 13.09.2019. The present petitioners preferred an application under Section 5(3)(c) of the Disturbed Areas Act to seek prior permission in respect of the aforesaid proposed sell transaction. 8. The aforesaid application was decided by the Collector, Vadodara vide order dated 24.12.2020 passed in Application No.5405 of 2019 and rejected the application preferred by the petitioners on the ground that the residents of nearby vicinity have opined that such sell will disturb peace in the area, and therefore, based upon that the Police Commissioner after taking statement of the nearby residents negatively opined for grant of permission, and hence, the application preferred by the petitioners was rejected. 9. Against the said order dated 24.12.2020, the present petitioners preferred an Appeal provided under Section 6 of the Act to the Special Secretary, Revenue Department, the same was numbered as Appeal/Disturb/VAD/2/2021 and vide order dated 15.09.2021, the learned Secretary, Revenue Department (Appeals) Ahmedabad remanded back the matter to Collector, Vadodara by taking into consideration the provisions of Section 4 of the Act. 10. Learned advocate Mr. Hakim pointed out that Section 4 of the Act is applicable only to the transactions which have already taken place and when a person is seeking post facto permission, whereas, Section 5 is applicable in case wherein transactions have yet to take place and a person is seeking prior permission, and therefore, learned advocate Mr. Hakim submitted that in view of that impugned order passed by the Secretary, Revenue Department suffers from non application of mind as the property intended to be purchased by the petitioners would be governed under the permission as Section 5 of the Act and not as per under Section 4 of the Act, and therefore, the present impugned order is erroneous, and therefore, the same is required to be quashed and set aside. Learned advocate Mr. Learned advocate Mr. Hakim submitted that considering the fact that while remanding back the matter, learned Secretary, Revenue Department has not considered the fact that the application preferred by the petitioner seeking prior permission was under Section 5(3) of the Act, and therefore, without entering into the merits of the matter at this stage this Court may remand back the matter to learned Secretary to consider the Appeal preferred by the petitioners in light of the original application of the petitioners which was rejected by Collector, Vadodara vide order dated 24.12.2020. 11. Learned AGP Mr. Sahil Trivedi and learned AGP Mr. Hardik Mehta vehemently opposed the aforesaid application and submitted that merely because an application is preferred under Section 5 of the Act, it cannot be presumed that the sell transaction has not taken place. Both the learned AGP submitted that when the petitioners themselves has specifically stated in the petition that substantial amount of Rs.16,00,000/- out of sell transaction has already been paid while executing the agreement to sell, Section 4 of the Act also can be applied in the sell transaction as the only formality left now to execute the sale deed, and therefore, the order passed by the Secretary, cannot to be said any legal all that the petitioners want permission holding the sell to be valid. 12. I have considered the submissions made by learned advocate for the petitioners Mr. Haqim as well as learned AGP Mr. Trivedi and Mr. Mehta. 13. Upon reading of Sections 4 and 5 of the Act, it is crystal clear that language of Sections 4 and 5 would be clear that Section 4 is in respect of transaction that has already taken place whereas Section 5 specifically speaks about prior permission. The petitioners have specifically stated that they have not executed the sale deed, and therefore, the application of the petitioner under Section 5(3) required to be considered in light of the provisions of Section 5 of the Act. 14. If the Secretary had while deciding an Appeal preferred by the petitioners come to the finding that the sell has already taken place he could have given reasons for the same or learned Secretary also could have given the reasons for relegating the petitioners to Collector, Vadodara by remanding the matter to be considered under Section 4. 14. If the Secretary had while deciding an Appeal preferred by the petitioners come to the finding that the sell has already taken place he could have given reasons for the same or learned Secretary also could have given the reasons for relegating the petitioners to Collector, Vadodara by remanding the matter to be considered under Section 4. However, on perusal of the impugned order, why an application preferred by the petitioners under Section 5 of the Act was directed to be considered under Section 4 of the Act no justifiable reasons are coming forward. Even learned AGP Mr. Trivedi or Mr. Mehta also could not point out any reason that why the petitions are required to be dismissed by supporting the order of the Secretary. 15. In view of the above considering the fact that the application made by the petitioners originally before Collector, Vadodara which has been rejected by the Collector, Vadodara was for seeking prior permission in respect of the sell transaction and upon dismissal of the said application, the Revision Application is required to be considered in light of original application of the petitioners. However, since assigning any justifiable reasons as to why while remanding the matter back, the Secretary, Revenue Department has passed an order directing the Collector to consider the application of the petitioners under Section 4 of the Act without assigning any reasons for the same, and therefore, the impugned order is required to be quashed and set aside only on that ground. 16. The matters are remanded back to the Secretary, Revenue Department for fresh consideration with a hope that the Secretary, Revenue Department will hear the parties after issuing fresh notice and decide the same as early as possible. 17. As far as Special Civil Application No.14401 of 2022 is concerned, learned advocate Mr. Hakim has stated at par the aforesaid petitions are preferred against the order passed by Collector, Vadodara, and therefore, he may be permitted to file an Appeal before Secretary, Revenue Department. 18. Permission as prayed for is granted. 17. As far as Special Civil Application No.14401 of 2022 is concerned, learned advocate Mr. Hakim has stated at par the aforesaid petitions are preferred against the order passed by Collector, Vadodara, and therefore, he may be permitted to file an Appeal before Secretary, Revenue Department. 18. Permission as prayed for is granted. If any Appeal is preferred by petitioner within a period of one month from today, in that case the Secretary, Revenue Department is directed to consider the fact that in respect of challenge to the order passed by Collector, Vadodara the petitioner has already preferred petition before this Court being Special Civil Application No.14401 of 2022 and decide the application for condonation of delay accordingly. 19. With the aforesaid direction, present petitions are disposed of. Notice is discharged. No order as to costs. 20. It is clarified that this Court has not gone into the merits of the matter, and the Secretary, Revenue Department is directed to keep in mind the observation in these petitions while deciding the Revision Application of the petitioners, if the authority comes to a conclusion that the application of the petitioner would fall within Section 4 of the Act, in that case, the Secretary, Revenue Department is directed to give reasons for the same.