Justices Dipankar Datta and Prashant Kumar Mishra remarked, “There is a presumption of constitutionality attached to every enactment,” emphasizing that interim orders should not suspend provisions of a law.
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NEW DELHI: On December 16, the Supreme Court upheld the constitutionality of legislation, dismissing a petition challenging a Gujarat High Court ruling that declined to suspend provisions of a 1991 state law concerning properties in disturbed areas.
Justices Dipankar Datta and Prashant Kumar Mishra remarked, “There is a presumption of constitutionality attached to every enactment,” emphasizing that interim orders should not suspend provisions of a law.
The Gujarat High Court, on October 28, had rejected a plea to suspend 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 Act, 1991, which prohibits the transfer of immovable property in such areas. The high court had noted that the merits of the case needed to be addressed before any suspension.
The Supreme Court advised the petitioners to pursue their challenge in the high court, suggesting they request an early hearing from the chief justice.
The petitioners’ counsel expressed for a hearing, but the Supreme Court affirmed that it would not interfere with the high court’s decision, dismissing the plea. However, it clarified that if the petitioners requested an expedited hearing, the high court would consider it.
The Special Leave Petition (SLP) was filed by Jamiat Ulama-e-Hind Gujarat, represented by Senior Advocate Huzefa Ahmadi and Advocate Ejaz Maqbool.
The Petitioners had initially 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 in Disturbed Areas (Amendment) Act, 2021, on the grounds that they violated the Constitution.
Specifically, the Petitioners contested amendments to Section 3 (Declaration of disturbed areas) and Section 5 (Prohibition of transfer of immovable property in disturbed areas) as being in violation of Articles 14, 15, 19(1)(e), and 21, and claimed they were contrary to constitutional morality and the basic structure of the Constitution.
In January 2021, the Gujarat High Court passed an interim Order staying parts of Section 3, based on an assurance from the state government that no notification would be issued under the amended provisions, and without inviting reasons for the assurance. The Court’s Order stated, “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.”
Justice Datta, while reading the Order, noted that an interim Order should be accompanied by reasons, which he described as an unreasonable interim Order. He suggested that the High Court may have intended to address the matter at an early date.
Regarding the stay of enactments, the Bench emphasized that there is a presumption of constitutionality for every enactment and that stays are granted only in exceptional cases. The Bench further remarked that since the case has been pending for three years, the Petitioners should approach the Chief Justice to request an early date for hearing.
Justice Datta asked Huzefa Ahmadi if he was interested in an early hearing, to which Ahmadi confirmed, but requested the Bench to review the amended provisions. In October 2023, the state government filed an affidavit stating that it was considering amendments to the provisions under challenge, which could address the Petitioners’ grievances.
The Petitioners argued that this affidavit amounted to a concession that the 2020 amendments were indefensible and unconstitutional, although they added that no bill to amend the Act had been tabled in the state legislature.
During the hearing, Ahmadi presented an Order by a Deputy Collector that rejected a Muslim’s application to buy property from a Hindu in a ‘disturbed area.’ The Order cited concerns about potential polarization of the Hindu community and a breach of law and order.
Similar Orders were presented by Ahmadi, where Collectors rejected property transfers based on the police’s adverse opinions, which Ahmadi argued demonstrated the harmful effects of the Act on the principles of secularism and fraternity, in violation of Article 50 of the Constitution.
However, the Bench declined to hear the SLP and dismissed it, suggesting that the Petitioners approach the Gujarat High Court for an early hearing to resolve the original Writ Petition.
Case Title: Jamiat Ulama-e-Hind Gujarat And Ors. v. State of Gujarat [SLP(C) 29024/2024.
