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2022 DIGILAW 725 (GUJ)

Mrudulaben Hasmukhbhai Patel v. State of Gujarat

2022-06-07

VAIBHAVI D.NANAVATI

body2022
ORDER : 1. The present petition under Article 226 of the Constitution of India, is filed seeking the following reliefs :- “15(a) Your Lordships will be pleased to admit the petition; (b) Your Lordships will be pleased to quash and set aside the order passed by the respondent no.1 at Annexure P dated 31.07.2017 and the respondent no.2 at Annexure R in revision application no.SSRD/Ashant/VDD/8/2017 dated 18.06.2018. c. Your Lordships will be pleased to direct the respondent no.1 to grant the permission to transfer the said property to Nazirabanu Zakirbhai Mayat; d. Your Lordships will be pleased to allow the petition; e. Any other relief deem fit and proper in nature of justice may pleased be granted; f. Cost of this petition may pleased be awarded.” 2. The brief facts as stated by the present petitioners are red thus:- 2.1 The petitioners no.1 and 2 applied for the permission to the respondent no.1 under the Gujarat Prohibition of Transfer of Immovable Property and Provisions for Protection of Tenants from Eviction from the Premises in Disturbed Areas Act, 1991, seeking transfer of the said property to the petitioner no.3. The petitioners no.1 and 2 purchased the property being bungalow No.A/69, which is an independent bungalow but various independent bungalow owners have created a service society named Samarpan Housing Society and accordingly, the Bungalow is situated in Samarpan Co. Operative Housing Society Ltd., more particularly, situated at F.P. No.8 in T.P.Scheme No.22, old revenue survey no.376/1 and 377 and city survey no.523 and 525 by registered sale deed on 06.05.1993 from owner Shri Habib Mohammad Khokhar. Hasmukhbhai Nagjibhai Patel expired on 04.02.2011 leaving behind the petitioners no.1 and 2 as his legal heirs and the said property was owned and possessed by the petitioners no.1 and 2. Mrudulaben and Srujal i.e. the petitioners no.1 and 2 executed a power of attorney in favour of the one Shri Mahesh Nagjibhai Patel on 10.11.2015. The petitioners no.1 and 2 sold the said property to the petitioner no.3 by a registered sale deed on 01.05.2017. The Sub Registrar issued a notice dated 02.05.2017 to the petitioner no.3 to deposit the deficit stamp duty. 2.2 Pursuant to the application filed by the petitioners no.1 and 2 seeking permission under the Act to transfer the said property to the petitioner no.3, the Collector vide letter no.Avit/Vashi/2078/17 wrote a letter to the Mamlatdar. The Sub Registrar issued a notice dated 02.05.2017 to the petitioner no.3 to deposit the deficit stamp duty. 2.2 Pursuant to the application filed by the petitioners no.1 and 2 seeking permission under the Act to transfer the said property to the petitioner no.3, the Collector vide letter no.Avit/Vashi/2078/17 wrote a letter to the Mamlatdar. The Collector, Vadodara also wrote a letter to the Police Commissioner, Vadodara vide letter no.Avit/Vashi/2078/17. The Talati inquired into the same and informed to the Deputy Collector, Vadodara, vide Communication dated 08.05.2017 that there is no hindrance in granting permission to the petitioners no.1 and 2. 2.3 The Police Commissioner in turn informed the Deputy Commissioner of Police to inquire and to submit the report. The Deputy Commissioner in turn informed the Police Inspector, J. P. Police Station to inquire into the same. It appears that the President and Vice President of the society filed objection before the police authority. Accordingly, Police Inspector, J P Police Station, Vadodara, reported to Dy. Police Commissioner on 27.06.2017 not to give permission to petitioners no.1 and 2 to transfer the property to petitioner no.3. The Dy. Police Commissioner in turn wrote the letter to the Police Commissioner, Ahmedabad on 02.07.2017 not to give permission to transfer the said property. The Asst. Police Commissioner wrote a letter dated 05.07.2017 to the Dy. Collector, Vadodara not to give permission to the petitioners no.1 and 2 to transfer the property. Considering the report of the Asst. Police Commissioner, Vadodara, the Dy.Collector Vadodara refused to give permission by passing order dated 31.07.2017. 2.4 The petitioners being aggrieved and dissatisfied by the order dated 31.07.2017 passed by the respondent no.1 preferred Revision Application before the respondent no.2 being SSRD/Ashant/VDD/8/2017 which came to be rejected by order dated 18.06.2018. Being aggrieved and dissatisfied by the orders dated 31.07.2017 and 18.06.2018, the petitioners constrained to approach this Court by filing the present petition. 3. Heard the learned advocate Mr.J.F.Mehta appearing for the petitioners and Ms.Dharitri Pancholi appearing for the respondent authority and Mr.Hasit Dave appearing for the respondent no.3. 4. Mr.J.F.Mehta appearing for the petitioners vehemently submitted that the impugned orders passed by the respondent authorities are illegal and bad in law. 4.1 While passing the orders by both the authorities, the authorities have exceeded the jurisdiction vested to them. 4. Mr.J.F.Mehta appearing for the petitioners vehemently submitted that the impugned orders passed by the respondent authorities are illegal and bad in law. 4.1 While passing the orders by both the authorities, the authorities have exceeded the jurisdiction vested to them. Mr.Mehta, learned advocate vehemently submitted that two ingredients contemplated under the Act namely free consent and fair value has been satisfied and therefore there was no need for respondent no.1 to initiate the further inquiry by writing a letter to the Police Commissioner, Vadodara. Learned advocate Mr.J.F.Mehta submitted that such exercise on the part of the respondent no.1 was beyond the scope of the Act and the respondent no.1 has exceeded the jurisdiction vested in it. 4.2 Learned advocate Mr.Mehta, learned advocate submitted that the respondent no.1 committed a grave error by discarding the report of Mamlatdar, who stated that there is no hitch/hindrance in granting the permission to the petitioners under the said Act with respect to said property. Learned advocate Mr.Mehta submitted that the respondent no.1 committed a grave error by not appreciated the report of panchnama carried out by Talati and also the police authority, Vadodara. Mr.Mehta, learned advocate further submitted that the respondent no.1 committed grave error by discarding the statement recorded and the affidavit filed by the petitioners and purchaser before the Talati and also Police Inspector, J P Road, Police Station, Vadodara. Mr.Mehta, learned advocate submitted that the scope of inquiry, which is required to be conducted by the respondent authority is only limited to the free consent of the parties and fair value of the property. Mr.Mehta, learned advocate submitted that though both the ingredients were satisfied, the respondent no.1 passed an order rejecting granting permission, which has lead to miscarriage of justice. Mr.Mehta, learned advocate relied upon the judgment reported in 1996(1)GLH(UJ) 14 and judgment reported in 2019(2)GLR 1015 and 2020 AIJEL_HC 242031 and submitted that once the above referred two criteria fulfilled i.e. free consent and free value, there is no further scope of inquiry and permission as contemplated under the Act was required to be granted to the petitioners. Mr.Mehta, learned advocate relied on various cell instances entered into the said area and submitted that none granting permission to the petitioners can be said to be discrimination between persons similarly situated and the petitioners. Mr.Mehta, learned advocate relied on various cell instances entered into the said area and submitted that none granting permission to the petitioners can be said to be discrimination between persons similarly situated and the petitioners. Mr.Mehta, learned advocate submitted that the respondent no.2 failed to appreciate the grounds and contentions raised by the petitioners and the said orders passed without giving reasons for not appreciating the grounds raised by the petitioners and in view thereof order passed by the respondent no.2 on 18.06.2018 is required to be quashed and set aside. 4.3. Mr. Mehta, learned advocate lastly submitted that the order passed by the respondent no.1 on 31.07.2017 and order passed by the respondent no.2 in Revision Application No.SSRD/Ashant/VDD/8/2017 on 18.06.2018 are therefore required to be quashed and set aside and the petition is required to be allowed. 5. Learned AGP Ms.Dharitri Pancholi raised preliminary objection and submitted that both the orders dated 31.07.2017 passed by the Deputy Collector, Vadodara and order dated 18.06.2018 passed by the respondent no.2 are challenged after a period of three to four years and delay is not explained by the petitioners and that the petition be dismissed on the aforesaid ground alone as being barred by the delay. 5.1 Ms.Pancholi further submitted on merits that the petitioners/writ-applicants have not disclosed that there was serious objection raised by the members of the society and that society vide letter dated 12.05.2017 informed the Asst. Police Commissioner, D-Division, Vadodara, with regard to transfer of property from Hindu to Muslim communities and there was threat of communal riot between two communities and there is anxiety that there would be law and order situation in future. 5.2 Learned AGP Ms.Pancholi further submitted that on receipt of the letter dated 12.05.2017, the Asst. Police Commissioner reported to Deputy Police Commissioner, Vadodara on 27.06.2017 not to give permission to the petitioners no.1 and 2 to transfer the property to petitioner no.3. The Dy.Police Commissioner (Zone 2) Vadodara in turn wrote a letter dated 02.07.2017 to the Police Commissioner, Vadodara, not to give permission to transfer the said property. Consequently, the Asst. Police Commissioner vide Communication dated 05.07.2017 wrote a letter to Deputy Collector, Vadodara, not to give permission to transfer the property in favour of the petitioner no.3. On receipt of such report from Asst. Consequently, the Asst. Police Commissioner vide Communication dated 05.07.2017 wrote a letter to Deputy Collector, Vadodara, not to give permission to transfer the property in favour of the petitioner no.3. On receipt of such report from Asst. Police Commissioner, the Deputy Police Commissioner, Vadodara, by the order dated 31.07.2017 the Deputy Collector, Vadodara refused to give the permission to transfer the property to considering aforesaid report, which was duly tendered by the police authority as aforesaid area being disturbed area. 5.3 Learned AGP Ms.Pancholi submitted that reliance placed by the petitioners with regard to transfer of bungalow in respondent no.3 society has been cancelled by the Deputy Collector, Vadodara. 5.4 Learned AGP Ms.Pancholi submitted that opinion of Police Commissioner is required to be taken into consideration for the purpose of maintaining law and order situation in the city. 5.5 Learned AGP Ms.Pancholi relied on Gujarat Disturbed Area (Amendment) Act, 2019, more particularly, Clause 4 and Sub Clause 5 of Section 5, submitted that the opinion of Police Commissioner has been made mandatory. 5.6 Learned AGP Ms.Pancholi further submitted that reliance placed by the petitioners on the order dated 09.03.2020 passed in Special Civil Application No.13041 of 2019 was in respect of transfer of the commercial property. However, in the present case, the transfer is with respect of residential premise and that the respondent no.3 has raised objection with regard to aforesaid property by the petitioners no.1 and 2 to the petitioner no.3 and opinion of the Police Commissioner for transfer of property is also negative and therefore in the present case cannot be equity with the order passed in Special Civil Application No.13041 of 2019 and therefore the facts of the present case are different from the Special Civil Application No.13041 of 2019 that the said order will not be applicable in the aforesaid facts of the present case. Learned AGP Ms.Pancholi submitted that as per the notifications dated 30.09.2009, 30.09.2014 and 30.09.2019 passed by the Revenue Department, the area which comes under the disturbed area which comes under the disturbed area for that area prior permission of Deputy Collector is mandatory. 5.7 Learned AGP Ms.Pancholi finally submitted that in view of the concurrent finding arrived by the respondent authority objection raised by the respondent no.3 society before the police authority, negative opinion given by the police authority. Ms.Pancholi further submitted that the present petition be dismissed in limine. 6. 5.7 Learned AGP Ms.Pancholi finally submitted that in view of the concurrent finding arrived by the respondent authority objection raised by the respondent no.3 society before the police authority, negative opinion given by the police authority. Ms.Pancholi further submitted that the present petition be dismissed in limine. 6. Mr.Hasit Dave, the learned advocate appearing for the respondent no.3 Samarpan Co. Op. Housing Society Ltd. submitted that it is not clear for what purpose the power of attorney was executed in favour of Mahesh Nagjibhai Patel. If petitioners no.1 and 2 are owner of the said property as claimed by them, the question of executing the power of attorney in favour of the said person are not relevant. There is also suppression for the said purpose of power of attorney and the same have not been disclosed in the present petition. This reveals that such powers were executed furtherance of some other purpose. 7. Mr.Dave, the learned advocate further submitted that the present petition is filed challenging the impugned orders denying the permission to the petitioners under the Gujarat Prohibition of Transfer of Immovable Property and Provision for Protection of Tenants from Eviction from Premises in Disturbed Areas Act, 1991, whereunder such permission has to be obtained prior to execution of any transfer of any property situated in a disturbed area. 7.1 Admittedly the petitioner nos.1 and 3 executed a sale deed on 01.05.2017 in favour of the petitioner no.3 itself shows the gross illegality and disregard of law committed by the petitioners without obtaining the prior permission from the authorities under the Disturbed Area Act. Mr.Dave, the learned advocate further submitted that the petitioners have not produced on record a copy of the sale deed executed on 01.05.2017 in favour or the petitioner no.3 on record of the present case, which is relevant and germane to understand the mode and manner of its execution of the sale deed between the petitioners no.1 and 2 and petitioner no.3. Mr.Dave, learned advocate further submitted that the petitioners have relied on statements made by the adjoining neighbours and that relying on the said statements contended that the transfer is free and fair transfer. Mr.Dave, learned advocate further submitted that the petitioners have relied on statements made by the adjoining neighbours and that relying on the said statements contended that the transfer is free and fair transfer. Mr.Dave, learned advocate submitted that the transfer is of no relevance in view of the fact that the NOC from the society has not been done nor any intimation of this transaction has been given and yet the sale deed has been executed. Mr.Dave, learned advocate further submitted that the statements are given by the neighbour that it is free and fair transfer is not true in view of the fact that no statement has been taken from immediate neighbour or of the society office bearer of the society and the petitioners have taken statements of the persons who are not immediate neighbour of the society and who have colluded with them for the aforesaid transaction. Mr.Dave, learned advocate submitted that the petitioners no.1 and 2 never informed the office bearers and the secretary of the society prior to undertaking any such transfer or even of their said intention, it clearly shows and reveals that they have adopted hideous and surreptitious methods without informing the society to undertake this transfer in such manner. Mr.Dave, learned advocate further submitted that upon finding the same immediately protested before the police authorities and reported the past incidents of the society wherein also such permissions were denied and particularly about the fact of having faced communal violence in the society and many incidents of disturbance of peace, due to certain such illegal transfers and members having illegally occupied residence in the society. Mr.Dave submitted that the police authorities are well aware with regard to the aforesaid facts as referred above. Therefore, the police has not accorded permission to the proposed transfer. Mr.Dave, learned advocate submitted that the office of the Deputy Collector also being well aware of the several past incidents and such permissions having been denied in view of the consistent breach of peace and fear of communal disturbances in the society, the Deputy Collector rightly rejected the permission under the provisions of section 5 of the Disturbed Areas Act to the petitioners. Mr.Dave lastly submitted that both the authorities that the office of the Deputy Collector and the office of the learned SSRD,have after considering the entire evidence on record clearly found that this permission cannot be granted to the petitioners who have rather acted illegally by firstly executed the sale deed and seeking such permission retrospectively. 7.2 Mr.Dave, learned advocate submitted that the evidence that was produced before the respondent no.2 about many other such transactions in the society are absolutely false and incorrect, admittedly all such transfer was without prior permission under the act and are already undertaken to be cancelled and all such members are sought to be evicted. In view of above, false and incorrect statements, the petitioners are seeking to misguide this Court by also not giving true and correct fact and also not producing sale deed executed in illegal manner, when the transfer permission is already been denied by the concerned authorities under the Disturbed Areas Act. In view of above submissions, Mr.Dave submitted that the petition be dismissed and prayers as sought for by the petitioners be denied. 8. Heard the learned advocate Mr.J.F.Mehta appearing for the petitioners, Mr.Dharitri Pancholi, learned AGP appearing for the respondent authorities and Mr.Hasit Dave appearing for the respondent no.3 Samarpan Housing Service Co-Operative Society Ltd. 9. The petitioners no.1 and 2 sold the property being Bunglow No.A/69 situated in Samarpan Co.Op. Housing Society Ltd. more particularly situated at F P No.8 in T P Scheme No.22, old revenue survey no.376/1 and 377 and city survey no.523 and 525 by a registered sale deed on 01.05.2017 to the petitioner no.3. The petitioners no.1 and 2 thereafter applied for permission to the respondent no.1 under the Disturbed Areas Act to transfer the said property to the petitioner no.3. The petitioners applied to the respondent Collector under section 5(3) of the Act, seeking permission to transfer the said property in favour of the petitioner no.3. It appears that the said application was duly filed along with affidavit by the petitioners no.1 and 2 and petitioner no.3. The Collector by the letter No.Avit/Vashi/2078/17 wrote a letter to the Mamlatdar to inquire and report. Punchnama was duly drawn, which is dated 06.05.2017 and statements of neighbours were recorded. The Mamlatdar opined that there is no hindrance in granting permission to the petitioners no.1 and 2. The Collector by the letter No.Avit/Vashi/2078/17 wrote a letter to the Mamlatdar to inquire and report. Punchnama was duly drawn, which is dated 06.05.2017 and statements of neighbours were recorded. The Mamlatdar opined that there is no hindrance in granting permission to the petitioners no.1 and 2. The said report dated 08.05.2017 by the Mamlatdar is produced at Annexure H, which reads thus :- “The stated property has been included under the jurisdiction of J P Police Station, Vadodara under Rule 5(1) of the Gujarat Disturbed Areas Act, 1991. The residents in the surrounding have not raised any kind of objection or opposition. It should be noted that as per the statements recorded before the Talati, Tandalja, there is no hesitation in giving the permission sought by the applicant for transferring the property located in the disturbed area.” 10. Pursuant to the application by petitioners no.1 and 2 for permission, the Collector also wrote a letter No.Avit/Vashi/2078/17 to the Police Commissioner, Vadodara, seeking report pursuant to the aforesaid application. The Police Commissioner in turn informed the Deputy Collector to inquire and submit the report. The report by the office of the Deputy Commissioner of police dated 02.07.2017 duly communicated to the Police Commissioner, Vadodara, reads thus:- “On recording the statements of the transferor and the transferee of the property in this case and on recording the statements of the applicants, i.e. the owner of the property and the purchaser after conducting the Panchkyas of the place of the property, it appears that the said sale transaction has not been done by intimidation. Further, the neighbouring residents do not have any objection against the transfer of the said property. However, there is the possibility of the breach of peace in future due to transfer of the said property and on recording their statements, the chairman of the said society Manish Puranchand Malhotra, residing at B.31, Samarpan Housings Society, Vadodara and the vice-chairman Bikamji Charansinh Sitara, residing at B.74, Samarpan Housing Society, Tandalja, Vadodara have raised strong objection with respect to the transfer of the said property. Moreover, the objection is found reasonable during the investigation. Moreover, the objection is found reasonable during the investigation. Moreover, the neighbouring residents are likely to be affected due to the transfer of the said property and it is likely that it may affect the majority/minority of the Hindu – Muslim community and it amy jeopardize the law and order situation in this area in future. Since there is possibility of communal disturbance, the possibility of migration of the majority community and question of law and order situation in future cannot be denied due to the transfer of the said property. Therefore, the police inspector, J P Road Police Station and the Assistant Commissioner of Police, D.Division, Vadodara City have opined not to grant permission to transfer the said property. The papers at aforementioned reference have been appended herewith, which may be noted.” 11. On the basis of report filed by the Deputy Commissioner of Police, the Commissioner of Police, Vadodara City, by the Communication dated 05.07.2017, opined that there is risk of communal harmony and probability of surfacing questions of law and order and therefore opined not to grant permission to transfer the said property. The Communication dated 05.07.2017 reads thus :- “Upon recording statements of the applicant and purchaser, it was found that the sale transaction is not taking place by intimidation. Pachnama of the place is drawn. The neighbouring residents have no objection against the transfer of this property but as it may lead to hamper peace in future, upon recording the statements of Manish Puranchand Malhotra, chairman of the said society, residence B/31, Samarpan Society and Bikamji charansinh Sitara, Vice Chairman, residence B-14, Samarpan Society and they have strongly objected against the transfer of the said property. It may affect the neighbours. It may affect Minority/Majority community of Hindu and Muslim. This may cause risk to law and order in future. There is risk of communal disharmony and probability of surfacing questions of law and order and exodus of majority community cannot be denied. Hence, it is opined not to grant permission to transfer the said property. Therefore, it is not opined to transfer the property of the applicant. The original papers of the investigation and the application are apprehended herewith.” 12. Hence, it is opined not to grant permission to transfer the said property. Therefore, it is not opined to transfer the property of the applicant. The original papers of the investigation and the application are apprehended herewith.” 12. Considering the provisions of Disturbed Areas Act, the notifications of the Revenue Department dated 30.09.2009, 09.12.2009 and 09.06.2011, the letter of the Collector, Vadodara, the notification of the Revenue Department dated 30.09.2014, opinion of the Mamlatdar dated 08.05.2017 and opinion of the Asst. Commissioner of Police dated 05.07.2017, the Deputy Collector passed an order rejecting the application seeking transfer of the said property by the petitioners no.1 and 2 in favour of the petitioner no.3. The said order dated 30.01.2017, produced at Annexure ‘P’ reads thus:- “As this property falls under the disturbed area as per the notification of the Government reference at read-3, it is necessary to obtain prior permission of this office before transferring the immovable property. Opinion regarding investigation in this matter was sought from Mamlatdar, Vadodara City and Police Commissioner, Vadodara City. The Asst. Police Commissioner has given opinion not to give permission for the transfer of this property situated in the disturbed area as law and order situation is at risk and there is probability of communal disturbance due to the transfer of this property. Therefore, your application seeking permission for transfer your property is “rejected”. If you are aggrieved by this order, you can appeal before the Special Secretary, Revenue Department (Appeal), Ahmedabad within 60 days.” 13. Being aggrieved by the aforesaid order passed by the Deputy Collector rejecting the application filed by the petitioners, the petitioners filed a Revision Application under section 5(1) of the Disturbed Areas Act, 1991 for sale transaction regarding transfer of property. By the order dated 18.06.2018, the Revision Application filed by the petitioners came to be rejected confirming the order passed by the Deputy Collector, Vadodara dated 30.01.2018. The petitioners did not remain present during the hearing and therefore the case was required to be decided based on merits considering the submissions advanced in the application. By the order dated 18.06.2018, the Revision Application filed by the petitioners came to be rejected confirming the order passed by the Deputy Collector, Vadodara dated 30.01.2018. The petitioners did not remain present during the hearing and therefore the case was required to be decided based on merits considering the submissions advanced in the application. The order dated 18.06.2018 produced at Annexure ‘R’, reads thus :- “considering the submissions made by the parties, the case record, site inspection and material documents, it appears that, before transferring the immovable property covered under disturbed areas through the notifications dated 30.09.2009, 09.12.2009 and 09.06.2011 of the Revenue Department of the Government, it is necessary to obtain permission of the Deputy Collector. As per the opinions of the Mamlatdar, Vadodara City and the Commissioner of Police, Vadodara City, the Asst. Commissioner of Police has opined not to grant permission for transfer of this property, situated in the disturbed area since the transfer of the said property may endanger the situation of law and order and there is possibility of communal disturbance in this area. Therefore, the decision of the Deputy Collector, Vadodara City in rejecting the application of the applicants seeking permission to transfer the property is appropriate, because it is a fact that the disputed property is situated in the area covered under the notification of the Disturbed Areas Act. In this matter, the Deputy Collector has denied the permission after obtaining the opinion of the Chief of Police, who is responsible for maintaining law and order, and has rejected the application of the applicants as there is a possibility of breach of law and order. Hence, the representation of the applicants is not appropriate. Considering the above mentioned facts, the arguments in writing and the representation made by the parties and submitted material and evidence, the following order is passed. ORDER The Revision Application of the applicants Shri Mrudulaben Hasmukhbhai Patel R/o – House No.A-69, Samarpan Housing Society, Tandalja, Vadodara and others with respect to sell their property – House No.A/69, Vasna Road, Tandalja situated at F.P.-8 of T.P.Scheme No.22 in Revenue Survey No.376/1 and 377 paiki city survey no.523 and 525 moje Tandalja of Vadodara City is hereby rejected. The action taken by the Deputy Collector, Vadodara through his Order No.Avit/Vashi/2078/17 dated 31.07.2018 is appropriate. Issued today on 18.06.2018 under my signature and the seal. The action taken by the Deputy Collector, Vadodara through his Order No.Avit/Vashi/2078/17 dated 31.07.2018 is appropriate. Issued today on 18.06.2018 under my signature and the seal. By order and in the name of the Governor of Gujarat.” 14. This Court has considered the order passed by the Collector dated 31.07.2017 rejecting the application seeking permission to sell the property by the petitioners no.1 and 2 in favour of the petitioner no.3 by application under Section 5(3) of the Act, which is duly produced at Annexure ‘A’, which has been confirmed by the Revisional Authority by the order dated 18.06.2018. While considering the application preferred by the petitioners, it appears that the authorities below rejected the application under Section 5(3) of the Act, relying on opinion of the Police Commissioner dated 30.01.2017 opining to refuse the permission to transfer the said property, in view of the fact that the aforesaid property is situated in disturbed area. 15. 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, 1991, reads thus :- “5. Prohibition of transfer of immovable property in disturbed area: (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 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). (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 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 Gujarat 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 the transferor and transferee and for a fair value of 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. 16. It appears that while passing the aforesaid orders, the authorities below failed to consider the opinion of the Mamlatdar and proceeded to reject the application preferred by the petitioners no.1 and 2 considering the opinion of the Police Commissioner. In view of this Court, the respondent authority was required to take into consideration the opinion of the Mamlatdar while placing reliance on the report by the Police Commissioner. In view of this Court, findings arrived at by the Mamlatdar in report dated 08.05.2017 are not discussed by the respondent authorities while coming to the conclusion to reject the application preferred by the petitioners no.1 and 2 seeking transfer of the said land in favour of the petitioner no.3. 17. It appears that the Collector requested the Mamlatdar to hold an inquiry and verify that two ingredients contemplated under the Act i.e. free consent and fair market value have been satisfied, after giving due opportunity of hearing to the petitioner and held an inquiry under Section 5 of the Act. In the facts of the present case, findings/report dated 08.05.2017 of the Mamlatdar is in favour of the petitioners no.1 and 2. The Mamlatdar in his report submitted that the sale is with free consent and fair market value. The panchnama was drawn and statements of nearby neighbours were recorded by the Talati for coming to the aforesaid conclusion. In the facts of the present case, findings/report dated 08.05.2017 of the Mamlatdar is in favour of the petitioners no.1 and 2. The Mamlatdar in his report submitted that the sale is with free consent and fair market value. The panchnama was drawn and statements of nearby neighbours were recorded by the Talati for coming to the aforesaid conclusion. The Collector also sought for the opinion of the Police Commissioner, Vadodara, who submitted that approval of the aforesaid sale as prayed for by the petitioners, would lead/result to disturbance of communal peace. The Collector therefore rejected the application preferred by the petitioners seeking permission to sell relying upon the aforesaid report of the Police Commissioner however, has not taken into consideration the report of the Mamlatdar dated 08.05.2017. In the appeal preferred by the petitioners challenging the order passed by the Deputy Collector dated 02.07.2017, the Special Secretary in revision confirmed the findings of the Dy. Collector and rejected the appeal by the order dated 18.06.2018. 18. Section 5 of the Gujarat Prohibition of Transfer of Immovable Property and Provision for Protection of Tenants from Eviction from Premises in Disturbed Areas (Amendment) Act, 2019, reads thus:- “5. Prohibition of transfer of immovable property in disturbed area: (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 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 Gujarat Land Revenue Code, 1879 (Bom. (b) On receipt of such application, the Collector shall hold a formal inquiry in the manner provided by the Gujarat Land Revenue Code, 1879 (Bom. v. of 1879), and after giving an opportunity to the applicant to be heard and after considering any evidence produced, decide whether – (i) the immovable property is sought to be transferred in terms of clause (e) of section 2; (ii) there is free consent of persons intending to be the transfer and the transferee; (iii) the transfer is for a fair value of immovable property proposed to be transferred; (iv) there is likelihood of porarization of the persons belonging to the community causing disturbance in demographical equilibrium of the persons belonging to different communities residing in the area in which the immovable property is proposed to be transferred; (v) there is likelihood of improper crustering of persons belonging to one community in the area in which the immovable property is proposed to be transferred and accordingly; (a) reject the application; or (b) by an order in writing, give previous sanction to the proposed transfer of immovable property; (c) The Collector shall decide the application made under subsection (2) preferably within a period of three months from the date of receipt of application; provided that the Collector may extend the said period by recording reasons which necessitated extension of the said period.” 19. The contention of the petitioners is that, opinion of the police authority is not mandatory and that the Collector is required to consider the findings of free consent and fair market value arrived at by the Mamlatdar and duly reported to the Collector for consideration of the application preferred by the petitioners. Both, the Collector and Special Secretary failed to assess the findings of the Mamlatdar as against the report by the Police Commissioner, whether there was free consent or fair market value based on inquiry under section 5 of the Act. The Gujarat Disturbed Area (Amendment) Act, 2019, making it mandatory to be examined by the police authority has been stayed by the order dated 20.01.2021 passed in Special Civil Application No.1011 of 2021, which reads thus :- “We have heard Shri Mihir Joshi, learned Senior Counsel assisted by Shri Muhammad Isa M. Hakim, learned counsel for the petitioners and Ms. The Gujarat Disturbed Area (Amendment) Act, 2019, making it mandatory to be examined by the police authority has been stayed by the order dated 20.01.2021 passed in Special Civil Application No.1011 of 2021, which reads thus :- “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 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.” 20. In view of above, both the orders i.e. order passed by the Collector dated 31.07.2017 and the order of Revisional Authority dated 18.06.2018 are quashed and set aside. The Collector, Vadodara is directed to decide the application preferred by the petitioners duly produced at Annexure ‘A’ afresh in accordance with law as expeditiously as possible independently without being influenced by the findings arrived at by this Court. Further, the Collector is directed to examine the report and supporting documents adduced by the Mamlatdar and report by the Police Commissioner and decide the application afresh in accordance with law. It is open for the respondent no.2 Society to prefer an application before the Collector seeking impleadment in the aforesaid proceeding and the Collector shall decide the same in accordance with law. This Court has not examined the submissions canvased by the respondent no.3 Society at this stage under Article 226 of the Constitution of India. 21. It is open for the respondent no.2 Society to prefer an application before the Collector seeking impleadment in the aforesaid proceeding and the Collector shall decide the same in accordance with law. This Court has not examined the submissions canvased by the respondent no.3 Society at this stage under Article 226 of the Constitution of India. 21. In view of above, the present petition stands partly allowed to the aforesaid extent. As a sequel, the Civil Application also stands disposed of.