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2017 DIGILAW 1279 (GUJ)

Deceased Ravjibhai Narsinhbhai v. Poonamchand Parmar

2017-07-13

R.SUBHASH REDDY, VIPUL M.PANCHOLI

body2017
JUDGMENT : R. SUBHASH REDDY, J. 1. This Misc. Civil Application is filed under the provisions of/the Contempt of Courts Act, 1971, to punish the opponents, who are committing the contempt of court for violation of order of this Court dated 21.12.2015 passed in Special Civil Application No. 2827 of 1998 and to purge the contempt forthwith. 2. Special Civil Application No. 2827 of 1998 was filed under Article 226 of the Constitution of India by the applicants-original petitioners with the prayers, which read as under: “31 (A) to direct the respondents to issue notification for dereserving the land of the petitioners bearing Survey No. 109 situated at Nagarwada in the city of Vadodara under the provisions of the Act and permit the petitioners to develop the said land in accordance with law. 31 (B) to quash and set aside the notification dated 11/11/1994 for again re-reserving the land of the petitioners bearing Survey No. 109 for the purpose of Botanical Garden for M.S University. 31(C) … … …” 3. Necessary facts, in brief, for disposal of this application are as under: 3.1 The applicants are owners of land bearing survey No. 109 situated in Nagarwada area of city of Vadodara. The land belonging to the petitioners is situated within the notified area of Vadodara Urban Development Authority (“VUDA” for short). For the local area of VUDA, a development plan was prepared under the provisions of Bombay Town Planning Act, 1954 and the said development plan was sanctioned by the State Government under the provisions of Bombay Town Planning Act on 21.09.1970 and the said development plan came into force with effect from 01.12.1970 Gujarat Town Planning and Urban Development Act, 1976 (“the Act” for short) came into force with effect from 01.02.1978 Under the provisions of the Act, Vadodara Urban Development Authority came to be constituted. VUDA prepared and published draft development plan on 17.05.1979 which was approved by the State Government vide notification dated 22.02.1983 It is relevant to notice that in the final development plan so sanctioned, the land of survey No. 109 admeasuring 10724 sq. mtrs. was reserved under Section 12(2)(k) of the Act for the botanical garden of M.S University, the 4th opponent herein. mtrs. was reserved under Section 12(2)(k) of the Act for the botanical garden of M.S University, the 4th opponent herein. 3.2 Though the land of the applicants referred above was reserved in the development plan for the purpose of botanical garden of M.S University, the same was not acquired either under the provisions of Land Acquisition Act or by entering into an agreement with the owners. 3.3 Record indicates that steps were taken by the respondents in the development plan of the year 1993. VUDA issued notice for the revised development plan on 11.11.1993 vide resolution dated 20.10.1993 inviting objections and suggestions from the public at large. It is the case of the applicants that they have filed objections on 7.1.1994 and the revised development plan was published as provided under Section 15 of the Act on 20.10.1994, which was submitted to the State Government and ultimately, the revised final development plan came to be sanctioned by the State Government vide notification dated 25.10.1996 and the same came into force with effect from 26.11.1996 In the revised development plan also, the land in question was again reserved for the purpose of botanical garden for M.S University. In the revised development plan notified in the year 1996, when the land was again reserved for M.S University, the applicants herein approached this Court by filing the writ petition. 3.4 During the pendency of the proceedings in the petition before this Court, it appears that another notification dated 18.01.2012 was issued for revising the development plan again. When the land was not dereserved, without taking necessary steps for acquisition within the statutory period, the petition was filed, which was contested by the respondents. Various allegations made by the applicants in the petition were denied by the opponents. 3.5 The learned Single Judge, taking note of the earlier judgments of this Court, has disposed of the petition vide order dated 21.12.2015 with a direction as under: “19.1 It will be open for respondent no. 4-M.S. University to acquire the land in question as provided under Section 20(2) of the Act that by agreement or under the provisions of Land Acquisition Act, 1894 within a period of 12 months by way of an additional opportunity for the purpose for which the land was so reserved/designated in the final development plan. 4-M.S. University to acquire the land in question as provided under Section 20(2) of the Act that by agreement or under the provisions of Land Acquisition Act, 1894 within a period of 12 months by way of an additional opportunity for the purpose for which the land was so reserved/designated in the final development plan. 19.2 In case if the aforesaid directions are not adhere to within 12 months, the reservation of the land in question shall stand lapsed.” 4. In this application filed under the Contempt of Courts Act, 1971, it is the allegation of the applicants that in spite of specific directions issued by this Court to acquire the land as provided under section 20(2) of the Act, either by agreement or under the provisions of Land Acquisition Act, 1894, within a period of 12 months, no steps were taken for acquisition. It is alleged that in spite of directions of this Court that in absence of acquisition within a period of 12 months, the reservation of the land in question shall stand lapsed, the opponents have not taken any steps for declaring the zone for the land of the applicants which stood dereserved. 5. Heard Mr. Yatin Oza, learned Senior Advocate appearing with Mr. H.J Dholakia, learned advocate for the applicants, Mr. K.M Antani, learned Assistant Government Pleader for the 1st opponent, Mr. H.S Munshaw, learned counsel for 2nd and 3rd opponents and Mr. M.K Shelat, learned counsel for the 4th opponent. 6. Affidavit-in-reply is filed on behalf of the 2nd opponent by Dr. M.K Meena, Chief Executive Authority, VUDA. In the affidavit-in-reply, while denying various allegations made by the applicants herein and by referring to the directions issued by this Court in the order dated 21.12.2015 passed in Special Civil Application No. 2827 of 1998, it is categorically stated that the land in question was reserved for M.S University in the revised development plan and it has not taken any action for acquisition of land within a period of 12 months from the date of the order i.e 21.12.2015 under the provisions of Land Acquisition Act and therefore, the matter was taken up for appropriate decision in the board meeting dated 30.3.2017 and it was resolved that reservation of land for M.S University stands lapsed and the land is dereserved. It is stated that copy of the said resolution is annexed with affidavit-in-reply. It is stated that copy of the said resolution is annexed with affidavit-in-reply. As far as the issue of determination of zone is concerned, it is stated that needful would be done while undertaking the process for the revised development plan of VUDA. By referring to the resolution dated 30.3.2017, it is pleaded that the directions are already complied with and as such, the respondents have not violated the directions issued by this Court. Learned counsel has also tendered unconditional apology for the delay caused in taking appropriate decision by the authority. 7. Affidavit-in-sur-rejoinder is filed by the same Officer, who is the Chief Executive Authority of VUDA. In the affidavit-in-sur-rejoinder, while reiterating its earlier stand, it is stated that vide resolution dated 30.3.2017, VUDA has resolved to dereserve the land covered by Survey No. 109 of Village Nagarwada. Further resolution was passed to determine the issue of zoning in the near future when the issue of revised development plan is undertaken. Referring to the provisions of Gujarat Town Planning and Urban Development Act, 1976, it is stated that determination of zone is a lengthy exercise and various urban development aspects are required to be taken into consideration by the authority as well as the State Government. Referring to the provisions under section 21 of the Act, it is stated that said provision provides for revision of development plan and at present, VUDA has already undertaken initial steps for revision of development plan of VUDA by way of undertaking survey of usage of existing land within its statutory jurisdiction and it will take some time for finalizing the same. It is stated that for the purpose of issuing the revised development plan, provisions under sections 9 to 17 of the Act are required to be followed by the authority as well as the State Government. 8. Further affidavit-in-sur-rejoinder is filed by the Chief Executive Authority of VUDA. In the said sur-rejoinder also, again reiterating its earlier stand, it is stated that total area covered under the development plan of authority is 714 sq. kilo mtrs. which includes territorial area of Vadodara Municipal Corporation also and the third revised draft development plan is being prepared in accordance with the Act and within a period of two years, the procedure for preparing third revised draft development plan would be completed and it would be forwarded to the State Government for further action. kilo mtrs. which includes territorial area of Vadodara Municipal Corporation also and the third revised draft development plan is being prepared in accordance with the Act and within a period of two years, the procedure for preparing third revised draft development plan would be completed and it would be forwarded to the State Government for further action. 9. Learned Senior Advocate, Mr. Yatin Oza appearing for the applicants has submitted that in spite of specific directions of this Court, no steps have been taken by the opponents for acquisition of the land within a period of 12 months from the date of the judgment and on the other hand, by not declaring the zone for dereserved area, the opponents have violated the directions issued by this Court. It is contended by learned Senior Counsel that once the land stood dereserved for M.S University in view of the time lapse as directed by this Court, it is obligatory on the part of the opponents to notify the zone immediately by submitting proposals for variation in the development plan to the extent of the land of the applicants. It is submitted that consistently, the opponents have been notifying the land for the purpose of M.S University in the development plan but they are not taking any steps for acquisition of the land either by agreement or by initiating proceedings under Land Acquisition Act, 1894 and therefore, opponents have disobeyed the directions issued by this Court. Learned Senior Counsel has placed reliance on the judgments of the Hon'ble Supreme Court in the case of Bhikhubhai Vithlabhai Patel v. State of Gujarat reported in (2008) 4 SCC 144 . 10. On the other hand, it is contended by Mr. Munshaw, learned counsel appearing for opponent Nos. 2 and 3-VUDA that as VUDA has already resolved in their meeting held on 30.03.2017, by passing a resolution to dereserve the land for M.S University, the opponents have complied with the directions and as such, it cannot be said that there is willful and deliberate violation of directions of this Court attracting the provisions of Contempt of Courts Act, 1971 and that no further directions can be issued in the contempt application. Learned counsel, Mr. Learned counsel, Mr. Munshaw has placed reliance on the judgments of the Hon'ble Supreme Court in the case of Jhareswar Prasad Paul v. Tarak Nath Ganguly reported in (2002) 5 SCC 352 and the case of Sudhir Vasudeva, Chairman and Managing Director, Oil and Natural Gas Corporation Limited v. M. George Ravishekaran reported in (2014) 3 SCC 373 . 11. Before we proceed further, we deem it appropriate to notice the specific directions of this Court in the order dated 21.12.2015 passed in Special Civil Application No. 2827 of 1998. In the first development plan and in the revised development plan, land in question belonging to the applicants covered by Survey No. 109 situated at Nagarwada area of Vadodara was reserved for botanical garden of M.S University. In view of the earlier judgment of this Court, while disposing of the petition by order dated 21.12.2015, the learned Single Judge has given further chance to take steps for acquisition of the land either by way of agreement or by initiating proceedings under the Land Acquisition Act, 1894 within a period of 12 months from the date of the order. In the order itself, it is categorically declared that failing to adhere to acquire the land within a period of 12 months, the reservation of the land in question shall stand lapsed. In view of specific declaration in the order, which has become final, the land stood dereserved, which was earlier reserved for the purpose of botanical garden of M.S University. 12. In spite of the fact that the reservation stood lapsed after expiry of 12 months from 21.12.2016, the opponents have not taken any steps for declaring the land dereserved from the reservation immediately. While it is true that there are no further directions consequent upon lapsing of reservation but, at the same time, when the land is notified for a particular area, which plan stood lapsed in view of the declaration made by this Court, it is not open for the opponents to remain silent without taking any further steps. The only defense from the side of the opponents to oppose this contempt application is that VUDA, by resolution dated 30.03.2017, has passed a resolution declaring the land dereserved from the reservation of land for M.S University. The only defense from the side of the opponents to oppose this contempt application is that VUDA, by resolution dated 30.03.2017, has passed a resolution declaring the land dereserved from the reservation of land for M.S University. It is to be noticed that after contempt application is filed, this Court issued notice vide order dated 16.02.2017 and only thereafter, the opponents have taken steps to declare the de-reservation in the resolution dated 30.03.2017 In the absence of any further steps, it is not open for the opponents to plead that there were no further directions. In view of the declaration made by this Court, necessary implication is that the opponents to take further steps to notify the zone for the land for which earlier reservation stood lapsed. 13. In the judgment relied by learned Senior Counsel, Mr. Yatin Oza in the case of Bhikhubhai Vithlabhai Patel (supra), the provisions under the very same Act are interpreted by the Hon'ble Supreme Court. In the said judgment, even after expiry of statutory period, when the land was notified for the very same purpose and the same was approved by the Government, the Hon'ble Supreme Court found that the Government has approved the plan without examining the aspect of necessity and without forming an honest opinion and set aside the same and put the controversy to an end enabling the authority to utilize the land for residential purposes. In the said judgment, reliance was placed on the earlier judgment of the Hon'ble Supreme Court in the case of Bhavnagar University v. Palitana Sugar Mills (P) Ltd. reported in (2003) 2 SCC 111 . 14. In the present case on hand, we are confined our consideration only to examine whether the opponents have wilfully and intentionally violated the directions issued by this Court or not. In the order dated 21.12.2015 passed by this Court, the direction is to take steps for acquiring the land within a period of 12 months from the date of the order, either by agreement or by initiating proceedings under the Land Acquisition Act, 1894. It is true that the opponents have not taken any steps for acquisition of the land. It is the plea of the opponents that in the resolution dated 30.03.2017, the opponents have dereserved the land from earlier reservation for M.S University. It is true that the opponents have not taken any steps for acquisition of the land. It is the plea of the opponents that in the resolution dated 30.03.2017, the opponents have dereserved the land from earlier reservation for M.S University. Though the reservation stood lapsed in view of order dated 21.12.2015, the opponents have not taken immediate steps by passing any resolution. The alleged resolution, in which the opponents have taken decision, also came to be passed only after issuing notice by this Court in this application. For the delay occurred, the opponents have already expressed their unconditional apology in the affidavit-in-reply. In the absence of any consequential specific directions on account of lapse of the reservation of the land for M.S University, in the judgment of this Court and having regard to steps taken by the opponents, it cannot be said that the opponents have willfully and intentionally disobeyed the directions of this Court so as to grant the relief as prayed for in this application. 15. Learned counsel, Mr. Munshaw has placed reliance on the judgment in the case of Jhareswar Prasad Paul (supra). In the said judgment, the Hon'ble Supreme Court has held that in the contempt proceedings initiated under Article 215 of the Constitution of India, the Court cannot grant substantial further relief which is not covered by order or judgment in the matter of contempt proceedings. It is further held that if there is any ambiguity in the order or judgment, the Court should direct the parties to approach the Court which has passed the order. 16. In the judgment in the case of Sudhir Vasudeva (supra), when the directions were issued for creation of additional posts in contempt proceedings, the Hon'ble Supreme Court has held that no such consequential order can be passed in exercise of contempt jurisdiction. 17. In the case on hand, by virtue of implementation of the provisions of Gujarat Town Planning and Urban Development Act, 1976, it is clear that once reservation in the development plan is lapsed on account of order passed by this Court, it is obligatory on the part of the opponents by necessary consequence to declare the zone to the extent of land of the applicants. Instead of taking such steps, it is the stand of the opponents that when periodical revised development plan is again sought to be implemented for the entire Nagarwada area including the municipal area of Vadodara, the opponents would notify the relevant zone. The revision of development plan is a periodical statutory action on the part of the opponents. For the purpose of declaration of the zone, proposal is required to be sent for variation to the extent of the land of the applicants covered in the writ petition but the opponents cannot take shelter under the revise development plan for the entire Nagarwada area. The steps, which are to be taken consequent upon declaration in the order of the learned Single Judge, are to be considered independently by sending the proposals to the extent of the land of the applicants for variation in the development plan by taking necessary approval from the Government. By virtue of declaration made by this Court, land is under “No Zone” now. Unless the zone is declared, the applicants cannot make use of the land. Consistently from the last several years, land was reserved for botanical garden of M.S University and no steps have been taken to acquire the land in spite of further opportunity given in the order passed by the learned Single Judge. As the necessary corollary to notify the declaration of zone is not followed, such direction cannot be termed as a substantial supplementary direction as referred to in the judgment relied by Mr. Munshaw, learned counsel for VUDA. 18. Taking into consideration the totality of the circumstances, though we find that there is considerable delay and laches on the part of the opponents in taking steps after the order of this Court, we are of the view that the opponents have not committed any contempt of court by violating the directions issued by this Court in the order dated 21.12.2015 passed in Special Civil Application No. 2827 of 1998 intentionally and deliberately. As such, we are not inclined to grant any relief as sought for in the application. At the same time, as the opponents have to take necessary steps for declaring the zone for the land of the applicants by sending necessary proposals to the Government, we direct opponent Nos. As such, we are not inclined to grant any relief as sought for in the application. At the same time, as the opponents have to take necessary steps for declaring the zone for the land of the applicants by sending necessary proposals to the Government, we direct opponent Nos. 2 and 3-VUDA to send necessary proposals for declaration of the zone for the land in question within a period of two months from the date of this order and the 1st opponent shall consider and take further steps for approval within a period of two months thereafter. Subject to above, this Miscellaneous Civil Application stands disposed of. No order as to costs.