Gujarat High Court Restrains Govt From Notifying 'Disturbed Area' For 'Improper Clustering' Under Amended Disturbed Areas Act [Watch Hearing]

The Gujarat High Court on Wednesday restrained the State Government from declaring any area as "disturbed area" under Section 3(1)(ii) of the Gujarat Disturbed Areas Act, 1991, for "improper clustering of persons of one community."A Division Bench comprising Chief Justice Vikram Nath and Justice Ashutish J Shastri sought the Government's response on a PIL filed by Jamiat Ulama-e-Hind organization, challenging the vires of the Gujarat Disturbed Areas Act, 1991, as amended by an Act of 2020."Issue notice returnable on February 3, 2021. Senior Advocate Manisha Lavkumar, Learned Government Pleader upon instructions has informed that as of date the notification under Section 3(1)(ii) and (iii) of the amending Act 2020 has still not been issued and is at the stage of assent of the Governor. Till the next date fixed, the Respondent-state is restrained from issuing any notification under the above provision," the Bench ordered.[Watch the hearing from 42nd minutes and Order from 3.35.12] The Petitioner- organization, represented by Advocate Muhammad Isa M. Hakim, has stated that the impugned Act fosters an illegitimate object and should be declared ultra vires Article 14, 15, 19 and 21 of the Constitution for vagueness, manifest arbitrariness and excessive delegation. Background The 1991 Act was brought to make the provisions of a similar Act, enacted in 1986 to address the panic sales resulting in mass inter-area migration of communities that in the aftermath of the 1985 riots in Ahmedabad, permanent. Thus, whereas the prohibitions on transfer of immovable properties in the 'disturbed areas' of Gujarat affected by riots, etc. was declared to be void for a specific temporary period under the 1986 Act, the Act of 1991 made those provisions permanent. The 2020 amendment however brought certain 'drastic changes', which the Petitioner has challenged on the below mentioned grounds: Violates constitutional morality and basic features of the Constitution Section 3(1)(ii) of Disturbed Areas Act (as amended in 2020) gives the State Government power to declare an area to be a disturbed area on the grounds of (i) improper clustering of persons; (ii) polarization, and/or (iii) maintenance of demographic equilibrium; and even the mere likelihood of any of the same.Further, under Section 5, the Collector has the power to reject an application for permission to transfer an immovable property in a Disturbed Area. The Petitioner has submitted that above provisions clearly reflect that the through the impugned Act ipso facto permits the State to segregate persons on ground of religion. "The impugned Act envisions two kinds of clustering of persons: proper and improper. The clustering of persons with common identity alone is considered proper, whereas the opposite is considered improper. Thus, the resultant effect of the Act is that any area with a population of different communities would ipso facto be identified as disturbed and any transaction between parties belonging to different communities would not be permitted. Therefore, the impugned Act effectively creates and effectuates enclaves or ghettos belonging to different communities and prohibits any transfer of property that would disturb the said segregation," the plea points out. Taking objection to such a setting, the Petitioner organization has stated that the concept of proper clustering of persons as defined under the impugned Act is extremely broad based. "According to the definition, the clustering can be based on norms, religion, values or identity. This shows that the definition can include within its fold religion, ethnicity, language, caste, creed, eating habits, cultural practices, sexual orientation, and a host of other parameters. Therefore, the impugned Act is a frontal attack to the diversity, the composite culture and the multiculturism of the country," the plea states. It adds, "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." Reliance is placed on Navtej Singh Johar v. Union of India, (2018) 10 SCC 1 where the Supreme Court had observed, "Constitutional morality leans towards making Indian democracy vibrant by infusing a spirit of brotherhood amongst a heterogeneous population, belonging to different classes, races, religions, cultures, castes and sections." Violates Article 14, 15 of the Constitution as it is enacted for an illegitimate object and is manifestly arbitrary At the outset, the Petitioner organization has...

Gujarat High Court Restrains Govt From Notifying 'Disturbed Area' For 'Improper Clustering' Under Amended Disturbed Areas Act [Watch Hearing]

Akshita Saxena

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