The Gujarat High Court on January 20 restrained the state government from notifying any area as a "disturbed area" under Gujarat's Disturbed Area Act.
The high court's decision came on a plea filed by the Jamiat Ulama-e-Hind. (JUeH) which alleged that the act—formally known as The Gujarat Prohibition of Transfer of Immovable Property and Provisions of Tenants from Eviction from Premises in Disturbed Areas Act, 2020—resulted in the ghettoization and "improper clustering of persons of one community."
The high court proceedings can be seen in the video below from the 42nd minute onward.
What is the Disturbed Areas Act?
President Ram Nath Kovind in October 2020 gave his nod to the Bill—passed by the state legislative assembly in 2019—which included important amendments to the 1991 act. Under the amended 2020 act, a district collector (DC) can notify an area, a town or a city as a "disturbed area".
This classification is usually done if that area/town/city has a history of communal violence.
Once an area is notified as a "disturbed area", residents will be able to transfer their immovable property only after getting DC's nod. In the application, the seller must include an affidavit stating that they have got a fair market price for their property and that the sale is being done of their own free will.
Any person in violation of this act will attract penal provisions upto three to five years and a fine amounting to Rs 1 lakh or 10% of the jantri rate of the property (ready reckoner of property prices in different parts of the state), whichever is higher.
What are the key provisions in the Amended Act?
According to the 1991 act, only those areas that witnessed a history of communal violence could qualify as a 'disturbed area'. But, as per the amended act, the state may notify any area as a 'disturbed area' even if the state is of the opinion that there is a polarization of persons belonging to one community has taken place or is likely to take place leading to a disturbance in the demographic equilibrium of the area and where the mutual peaceful and coherence amongst the different communities may go haywire.
Under the amended act, the word "transfer" now includes the sale, gift, exchange, lease including taking possession of the property by way of power of attorney, or in any way the property is transferred from one person to another. To this effect, the Registration Act has also been amended to include the provision that no property in a disturbed area will be registered without the Collector's nod.
The Collector has more powers to ascertain the likelihood of "polarisation" or "improper clustering" of persons belonging to a particular community, in an area. He will be assisted by the Municipal Commissioner and Police Commissioner, on sale/transfer pleas and also while notifying an area as a disturbed area so as to maintain the demographic equilibrium of the area. The state government is now a supervisory authority and has the power to review a collector's decision even in the absence of an appeal. The supervisory authority will be formed when the rules of the act are framed.
A Special Investigation Team (SIT) or committee will probe any complaints or alleged violations.
A house owner may redevelop the property for himself. But if the owner decides to sell/lease/transfer/gift a part or whole of the redeveloped property then the Collector's permission must be taken.
The amended act is not applicable to the state's rehabilitation schemes in a disturbed area.
Presently Ahmedabad, Vadodara, Surat, Himmatnagar, Godhra, Kapadvanj and Bharuch are classified as disturbed areas.
Why did the government amend the Act?
According to the Gujarat government, the act aims to control communal polarisation of an area. "This Act will curb the illegal sale or transfer of properties in disturbed areas," Pradeepsinh Jadeja, Minister of State for Home, was quoted as saying.
"The new Act would ensure peace, stop polarisation and keep a check on attempts to cause demographic imbalance," he added.
The amendments to the original act were proposed after the state received a number of complaints about "unscrupulous persons who were getting ownership of properties while taking disadvantages of some legal loopholes". Complaints further alleged that sale/transfer of property was being done in contravention to the district collector's prior permission.
As per the 1991 act, the DC had to ensure the sale and transfer of a property in the disturbed area was done at fair market price and of the seller's free will.
The Bill was the state government's effort to pre-empt malafide intentions of certain people to polarise sensitive areas, Senior Cabinet Minister Bhupendrasinh Chudasama said when he introduced the bill in the state assembly in 2019. "It (the Act and proposed amendments) is a promissory note of permanent peace," he said.
Welcoming the move, BJP MLA from Vadodara city, Manisha Vakil, stated that members of a particular community would forcefully snatch property from the people of another community or by paying them a price above the market price.
What does the plea in the high court say?
According to the JUeH—an organization of Islamic scholars—the act violates fundamental rights on the grounds that "the concept of "proper clustering of one community" and its usage in Sections 3, 5, and 16A of the impugned Act leads to and effectuates segregation of citizens on grounds such a religion, race or any other uncommon aspect of identity, thereby perpetuating creation of ghettos or enclaves in the State. By effectuating identity-based segregation in the State, the Impugned Act and its pivotal provisions violate the Constitutional value of 'Fraternity' being the basic feature of the Constitution."
"Although the provisions of the Impugned Act are apparently neutral, it puts persons in minority, especially religious minority to a particular disadvantage compared to others. The effect of the provisions will be that persons of religious minorities such as Muslims would not be permitted to purchase property in non-Muslim dominated areas and would not be permitted to sell property to a non-Muslim in a Muslim minority-dominated area, thereby perpetuating discrimination and ghettoes," the plea said.