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2014 DIGILAW 535 (SC)

Vardha Enterprises Pvt. Ltd. v. Rajendra Kumar Razdan

2014-05-01

B.S.CHAUHAN, J.CHELAMESWAR, M.Y.EQBAL

body2014
ORDER : 1. Leave granted in all the cases. For convenience, it is desirable that we deal with the appeal arising out of SLP (C) No. 36356/2012 first. This appeal has been preferred against the impugned judgment and order dated 27.9.2012 passed in D.B. Civil contempt Petition No. 90 of 2010 passed by the High Court of Judicature for Rajasthan at Jodhpur, by which and whereunder, the High Court has issued certain directions for demolition of the construction made by the Appellant and cancelled the sanction of plan etc. 2. Facts and circumstances giving rise to this appeal are as under: A. A public interest litigation i.e. D.B. Civil Writ Petition No. 4271 of 1999 -Rajendra Kumar Razdan v. State of Rajasthan, was filed wherein the relief had been sought that all the constructions in and around the lakes specified in the State Government's Notification dated 17.1.1997 be stopped with immediate effect and appropriate action be initiated against the State Government agencies to stop the recurrence of such harmful and dangerous activities for the maintenance of lives of population in the said place. The aforesaid Notification dated 17.1.1997 was issued u/s 171 of Rajasthan Municipalities Act declaring area around Fatehsagar and Pichola Lake in Udaipur as 'no construction zone'. Subsequently, the aforesaid notification stood superseded by Notification dated 10.12.1999 declaring area around Fatehsagar lake and Pichola lake in Udaipur as 'controlled construction area'. The State Government approved Urban Improvement Trust, Udaipur (Controlled Construction Area) Building Bye-Laws, 2000 on 22.5.2000. B. The High Court vide order dated 6.2.2007 decided the writ petition filed by Shri Rajendra Razdan directing that there would be no construction in and around the said lakes and their respective catchment areas and under no circumstances the statutory authorities would permit any construction activity in the controlled construction area. C. The Appellant herein purchased 8.2 hectares of land vide 8 registered sale deeds from various agriculturists at village Tila Kheda, District Udaipur, Rajasthan between 12.5.2008 to 21.7.2008. The said land is more than 20 kilometers away from the controlled construction area around Fatehsagar lake and Pichola lake. The Appellant obtained the requisite permission such as land conversion order from the revenue authorities on r 30.11.2009; No Objection Certificate (HOC) from Pollution Control Board on 24.12.2009; NOC from Tourism Department on 6.1.2010; NOC from Village Panchayat on 13.10.2010; and six boat plying licenses on 30.11.2009. The Appellant obtained the requisite permission such as land conversion order from the revenue authorities on r 30.11.2009; No Objection Certificate (HOC) from Pollution Control Board on 24.12.2009; NOC from Tourism Department on 6.1.2010; NOC from Village Panchayat on 13.10.2010; and six boat plying licenses on 30.11.2009. The electricity connection was sanctioned in its favour on 17.3.2011. The Appellant's plan for raising construction of a hotel stood sanctioned by the Urban Improvement Trust (UIT), Udaipur on 31.12.2009. After obtaining the required permission, the Appellant surrounded the entire plot with compound wall and started construction and completed basement and ground floor. It also laid slabs for the first floor. D. As the directions issued by the High Court in its final judgment and order dated 6.2.2007 had not been complied with. The writ Petitioner filed Contempt Petition No. 90 of 2010 against ten officers of the statutory authorities with specific allegations of non-observance of no construction zone as required under Notification dated 17.1.1997. E. On the application filed by the writ Petitioner - Respondent No. 1 herein, the High Court proceeded against the Appellant also assuming that Udaisagar and Swarupsagar lakes were also covered by no construction zone/controlled construction zone and restrained the Appellant from raising the 8 construction vide order dated 12.10.2011. F. The Appellant filed application for recalling of the said order and for intervention. However, the application for recalling the interim order dated 12.10.2011 was rejected vide order dated 13.7.2012. G. While dealing with the contempt petition, the High Court appointed a Court Commissioner who submitted his report on 11.5.2012 and after considering his report, the order dated 27.9.2012 was passed cancelling the permissions/sanctions in favour of the Appellant and further directing demolition of its constructions alongwith the compound wall near Udaisagar lake and also imposed a fine off Rs. 1 crore. Hence, this appeal. 2A. This Court while entertaining the SLP vide order dated 26.11.2012 directed to maintain the status quo. 3. We heard Dr. Rajiv Dhavan, learned senior Counsel for the Appellant and Shri Mohan Jain, learned ASG, Shri Venkateswara Rao Anumolu, Shri K.B. Rohtagi, Ms. Aruna Gupta and Shri Shreekant N. Terdal, learned Counsel appearing on behalf of the Respondents and perused the record. 4. 3. We heard Dr. Rajiv Dhavan, learned senior Counsel for the Appellant and Shri Mohan Jain, learned ASG, Shri Venkateswara Rao Anumolu, Shri K.B. Rohtagi, Ms. Aruna Gupta and Shri Shreekant N. Terdal, learned Counsel appearing on behalf of the Respondents and perused the record. 4. The Notification dated 17.1.1997 issued by the State of Rajasthan declaring the no construction zone area around Fatehsagar lake and Pichola lake and had given the area and survey numbers to which such notification was applicable. In substance it covered the area surrounding Fatehsagar lake and Pichola lake in Udaipur. The subsequent Notification dated 10.12.1999 which superseded the Notification dated 17.1.1997 also covered a particular area giving full particulars of the survey numbers to which it could be applicable and none of the aforesaid notifications have included the survey numbers wherein the Appellant has raised the construction. 5. Counter affidavit filed by Respondent No. 1 - the writ Petitioner, before this Court on 18.12.2012 clearly provides that the notifications were applicable for Pichhola lake, Swaroop Sagar lake, Fateh Sagar lake and Badi lake and the subject matter of the writ petition before the High Court was restricted only to the area surrounding the said lakes. Notification dated 17.1.1997 and subsequent Notification dated 10.12.1999 did not apply to the land in dispute. Paragraph 6 of the above counter affidavit reads as under: "I submit that land of M/s. Vardha Enterprises Pvt. Ltd. at Tila Kheda is roughly at a distance of 20 kilometers away from aforesaid 'No Construction Zone' prescribed in notification dated 17.1.1997 and 'Controlled Construction Area' prescribed in notification dated 10.12.1999." 6. Relevant part of the counter affidavit filed by the Respondent No. 3 on behalf of the Rajasthan State Pollution Control Board reads: "4. That it is submitted that the Rajasthan State Pollution Control Board has granted consent to establish to the Petitioner absolutely in accordance with the provisions of the Water Act. The consent to establish was also subject to the submission of final land conversion permission letter of Urban Improvement Trust (UIT) Udaipur. I further invite the kind attention of this Hon'ble Court to paras 7,8,12 and opening para of Annexure P-48 at page 310 of S.L.P Paper Book Volume-IV. The consent to establish was also subject to the submission of final land conversion permission letter of Urban Improvement Trust (UIT) Udaipur. I further invite the kind attention of this Hon'ble Court to paras 7,8,12 and opening para of Annexure P-48 at page 310 of S.L.P Paper Book Volume-IV. The aforesaid paras of Annexure P-48 are quoted below: "(A) In State Level Meeting of Land-use Conversion Committee, decision has been taken for conversion of aforesaid land into Commercial Use (Establishment of Hotel) vide meeting No. 95/2009 dated 24.7.2009. Matter of approval for construction of Hotel was placed before the Meeting of Building Map Committee, dated 29.12.2009 of Urban Improvement Trust, Udaipur. The Committee has taken the decision to issue permission for p construction of Basement + Ground Floor + two more floors on aforesaid plot. Therefore, Site plan of Hotel, produced by you, is approved on the following terms and conditions. (B) This approval is being granted for construction of Hotel with Basement + Ground Floor + Two more floors. No construction other than this construction is allowed, otherwise action shall be taken as per Rules. In the event of giving false affidavit concealing the true facts on ownership and other issues, construction and use contrary to permission the permission issued by Trust shall automatically be considered as cancelled. (C) Letter of Consent to Establish has been issued for establishment of Hotel by Rajasthan State Pollution Control Board, Jaipur letter No. F(Tech)/Udaipur (Girwa)/157(1)2009-2010/4432, dated 24.12.2009. All the conditions mentioned in their letter shall be complied with compulsorily. (D) This approval for conversion of land use and construction shall be effected by the final orders of the Hon'ble High Court as mentioned in interim orders passed in D.B.C.W.P. (PIL) No. 1554/1004 dated 28.04.2008." I say that from para 14 of the said Annexure P-48 it is clear that the Urban Improvement Trust Udapur has granted permission for construction in compliance of State Govt. order No. 3(758)UDD/3/08 dated 18.11.2009./say that the Board has granted consent to establish much later i.e. on 24.12.2009. I say that in view of the aforesaid the answering Respondent cannot be held responsible for committing any contempt of the orders of the Hon'ble High Court." (Emphasis added) 7. The counter affidavit filed on behalf of the Respondent Nos. order No. 3(758)UDD/3/08 dated 18.11.2009./say that the Board has granted consent to establish much later i.e. on 24.12.2009. I say that in view of the aforesaid the answering Respondent cannot be held responsible for committing any contempt of the orders of the Hon'ble High Court." (Emphasis added) 7. The counter affidavit filed on behalf of the Respondent Nos. 4 to 9 through the Secretary of Urban Improvement Trust (UIT), Udaipur, also supported the case of the Appellant that the area in dispute was not covered by the aforesaid notifications nor it was the subject matter of the writ petition filed before the High Court and final judgment of the High Court in the PIL was not applicable to the land of the present Appellant. 8. The State Government has also supported the case of the Appellant contending that the land in dispute was not covered by the aforesaid notifications, nor it was the subject matter of the writ petition. Final order passed in the PIL did not cover or adversely affected the Appellant. 9. Admittedly, the Appellant was not a party in the writ petition wherein certain directions restraining grant of any permission to raise construction had been passed, nor the judgment passed in the writ petition attracted to the land in dispute. In the contempt petition grievance had been raised by the Respondent No. 1 that the order passed in the writ petition had not been complied with in strict sense. Therefore, we are of the considered opinion that under no circumstances, the Appellant could be dealt with in contempt proceedings and no order adversely affecting it, could have been passed. Exercise of contempt jurisdiction may have very serious repercussions as basically these are quasi-criminal proceedings in nature and are resorted to punish a person who wilfully disobeys the directions issued by the court. In the instant case, even by a stretch of imagination, it cannot be assumed that the Appellant could be subjected to the contempt proceedings. Before us, none of the counsel appearing for the Respondent could point out as under what circumstances the notifications dated 17.1.1997 and 10.12.1999 could be applicable to the land of the Appellant. The land in dispute is located about 20 kilometers away from the area described under those two notifications. 10. In view of above, the contempt order dated 27.9.2012 to the extent, it affects the appellant is set aside. The land in dispute is located about 20 kilometers away from the area described under those two notifications. 10. In view of above, the contempt order dated 27.9.2012 to the extent, it affects the appellant is set aside. However, we make it clear that in case any statutory authority finds that the Appellant has raised any construction in violation of any statutory requirement including the wet land rules and Regulations, if any, this order shall not restrain the said authority to proceed against the Appellant in accordance with law. 11. In view of above, there is no occasion for us to pass separate orders in I.A. Nos. 2 and 4 or any other I.A. pending in this appeal. The same stand disposed of. 12. Civil Appeals arising out of SLP (C) Nos. 36357-36358 of 2012 have been filed against the interim orders dated 12.10.2011 and 13.7.2012 passed by the High Court in contempt case and in view of the aforesaid judgment delivered in Civil Appeal arising out of SLP (C) No. 36356 of 2012, the same do not survive. Therefore, it stands disposed of in terms of the aforesaid judgment. Civil Appeal arising out of SLP (C) No. 36359 of 2012 has been filed against the final judgment and order dated 6.2.2007 in the Civil Writ Petition No. 4271 of 1999. In view of the aforesaid judgment delivered in Civil Appeal arising out of SLP (C) No. 36356 of 2012, it is not necessary for us to pass a separate order. This appeal also stands disposed of in terms of the aforesaid order.