Disturbed Areas Act: Gujarat govt says reconsidering 2020 amendments challenged in high court

The bench of Chief Justice Sunita Agarwal and Justice Aniruddha Mayee directed that the matter be brought to the advocate general’s notice and reply affidavits be filed accordingly.

The petition, moved in 2020 by Jamiat Ulama Welfare Trust and Nisar Ahmed Mohammad Yusuf Ansari, who is the general secretary of JU-e-H Gujarat, has primarily challenged the concept of “proper clustering of persons” as has been introduced and defined under the newly introduced Section 2(d) of the Gujarat Prohibition of Transfer of Immovable Properties and provision for Protection of Tenants from Eviction from Premises in the Disturbed Areas (Amendment) Act, 2020, or what is commonly known as the Disturbed Areas Amendment Act, 2020.

A high court division bench in January 2021 directed the state government not to issue any fresh notification in operation of the amended sections of the Disturbed Areas Act, which deals with “improper clustering”.

The 2020 amendment also resulted in the amendment of section 3 of the original 1991 Act. The amendment of section 3 subsection 1 (ii) and (iii) lays down that an area can be declared as disturbed area by the state government if the latter is of the opinion that “polarization of persons belonging to one community has taken place or is likely to take place disturbing the demographic equilibrium of the persons of different communities residing in that area or that improper clustering of persons of one community has taken place is likely to take place where the mutual and peaceful coherence amongst different communities may go haywire in that area,” or “…that area of the State has become prone to disturbance of public order”.

Apart from the clauses being “vague” and “subjective”, it is the case of the petitioner that clauses of “likely to get disturbed” and “may go haywire” in the section further broadens the ambit of the provision, which was otherwise meant for limited operation. Operation of both these provisions – Section 3(1) (ii) and 3(1) (iii) were stayed by Gujarat High Court in January 2021.

In an affidavit dated October 23, filed by the state government through the revenue department’s deputy secretary of stamp division, Prerak Patel, it was submitted, “..State is contemplating to come out with amendments to the impugned provisions that are subject matter of challenge..In view of this, the grievances raised by the petitioner may not survive after the proposed amendments. At the same time, I respectfully say that in compliance with the interim relief…state is even otherwise obliged to not issue notifications under Sections 3 (1) (ii) and 3(1)(iii) of the..Act.”