The Supreme Court today dismissed a petition seeking the Court's attention to Orders by local authorities in Gujarat rejecting applications for transfer of properties in 'disturbed areas' allegedly on the apprehension of polarisation and disturbance of law and order, despite a High Court's Order restraining the state government from notifying an area as such.

The Court was hearing a Special Leave Petition against an interim Order passed by the Gujarat High Court in October this year rejecting certain clarifications on an Order passed in January 2021 restraining the state government from issuing any notification declaring an area as a 'disturbed area' apprehending polarisation of persons residing in that area or "improper clustering of persons of one community".

Through its October Order, the High Court declined the request to direct authorities to desist from applying similar grounds existing in a provision that allows local authorities to prohibit the transfer of immovable properties in 'disturbed areas'. The High Court said, to grant this request, "the merits of the writ petition would be required to be addressed." The Petitioners today requested the Court to take notice of local authorities' orders rejecting applications seeking transfer of property between Hindus and Muslims.

A two-Judge Bench comprising Justice Dipankar Datta and Justice Prashant Kumar Mishra said, "We are not inclined to interfere with the impugned Order passed by the Division Bench of the High Court. Hence, the Special Leave Petition stands dismissed. However, we clarify that if a request for early hearing of the Writ Petition is made before the Bench presided over by the Chief Justice of the High Court, we trust that such request shall be considered."

The SLP was filed by Jamiat Ulama-e-Hind Gujarat, who was represented by Senior Advocate Huzefa Ahmadi and Advocate Ejaz Maqbool.

The Petitioners had originally filed a Writ Petition in the Gujarat High Court in 2021 challenging certain provisions of the Gujarat Prohibition of Transfer of Immovable Property And Provisions for Protection of Tenants From Eviction From Premises In The Disturbed Areas (Amendment) Act 2021 as being violative of the Constitution.

The Petitioners had challenged the amendments made to Section 3 (Declaration of disturbed areas) and Section 5 (Prohibition of transfer of immovable property in disturbed area) as being violative of Articles 14, 15, 19(1)(e) and 21 of the Constitution and "contrary to the fundamental notions of constitutional morality and basic features of the Constitution."

The High Court, in January 2021, passed an interim Order staying parts of Section 3 on the basis of an assurance of the state government that no notification would be issued under the amended provisions and reasons for the same were not invited. The Court's Order states, "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."

Today, Justice Datta, reading from the Order, said "But once an interim Order is passed, the High Court is expected to give reasons. So its an unreasonable interim Order. Maybe the High Court intended that the matter could be dealt with at an early date."

On the stay of enactments, the Bench said, "There is a presumption of constitutionality attached to every enactment. In very exceptional cases, there is a stay on an enactment. Now the matter is pending there for three years, you request the High Court. Approach the Chief Justice with a request, who will assign a date."

The Bench was of the view that if it decides to hear the present SLP against an interim Order now "the entire thing gets stalled before the High Court." Justice Datta asked Huzefa Ahmadi, "Are you not interested in an early hearing?" to which Ahmadi replied that he indeed was interested in an early hearing, but requested the Bench to see the amended provisions.

In October 2023, the state government filed an affidavit stating that it was contemplating amending the provisions under challenge in the petition and the grievances raised by the Petitioners in the petition may not survive after the proposed amendment.

The Petitioners, in their SLP, submitted that the state government's affidavit "amounts to a virtual concession that the provisions of the 2020 amendment are indefensible and unconstitutional." but add that no bill amending the Act in terms of the affidavit has been tabled by the state legislature "to the best of the knowledge of the Petitioners".

During the course of the hearing, Ahmadi showed the Bench an Order by a Deputy Collector made on an application by a Muslim who wished to buy a property owned by a Hindu located in a 'disturbed area' The Order rejected the transfer of property raising the possibility of polarisation of Hindu community and of breach of law and order in future. It mentioned an objection application was signed by housing society members given to the police, who then advised not to allow the transfer of the property.

Similar Orders by the Collectors rejecting applications to allow the transfer of property based on adverse opinion given by the police were cited by Ahmadi. "This is the pernicious effect of the Act" which strikes at the "very basic principles of secularism and fraternity and is in the teeth of Article 50," he said.

However, the Bench was not inclined to hear the present SLP and dismissed it, while asking the Petitioners to request the High Court for an early hearing to finally dispose of the original Writ Petition.

Cause Title: Jamiat Ulama-e-Hind Gujarat And Ors. v. State of Gujarat [SLP(C) 29024/2024]

Justice Dipankar DattaJustice Prashant Kumar Mishra

Tushar Kohli