1. The petitioner herein is Gujarat Water Supply and Sewage Board . In this petition under Article 227 of the Constitution of India the petitioner prayed for following reliefs :
(A) Your Lordships be pleased to direct respondent No. 1 to evict the land in question as early as possible and further be pleased to direct respondent No. 2 to take possession of the land at the earliest.
(B) Your Lordships may be pleased to pass such other and further order in the interest of justice which may be deemed fit to this Hon'ble Court.
2. The respondent was the original petitioner in Special Civil Application No. 10855 of 2008. The petitioner herein seeks fresh direction against respondent No.1 to evict from the land acquired for the present petitioner by respondent No. 2 as already directed in Letters Patent Appeal No. 1391 of 2008 and 1390 of 2008.
3. To Briefly state the facts : The Regular Civil Suit No. 660 of 2001 is preferred by respondent No.1 original plaintiff before the Civil Judge (S.D) at Bhavnagar and prayed for permanent injunction against dispossession from the land in question.
3.1 In this application for injunction moved by this respondent the trial court rejected the same on 14th March 2006 which was challenged before the District Court in Misc Civil Appeal No. 38 of 2006 and the same was decided in favour of respondent No.1 vide order dated 2nd January 2008.
4. The petitioner herein challenged the said order of the District Judge Bhavnagar vide Special Civil Application No. 10855 of 2008 along with Special Civil Application No. 10856 of 2008. This Court (Coram : Akil Kureshi,J.) vide order dated 19th September 2008 disposed of these petitions with the following directions which is as under :
(i) The impugned order dated 02.01.2008 passed by the Additional District Judge and Presiding Officer, Fast Track Court No.2, Bhavnagar is quashed and set aside.
(ii) The present respondents would have time upto 31.12.2008 to vacate the land. This extension would, however, be available upon their filing an undertaking before the Trial Court that they shall voluntarily hand over the possession within the time prescribed.
(iii) The above observations are meant only for dealing with the interim stage of the proceedings and will not prejudice the plaintiffs in pursuing their pending suits.
5. This did not satisfy respondent No. 1 and challenged before the Division Bench of this Court in Letters Patent Appeal No. 1390 of 2008 and 1391 of 2008. These Letters Patent Appeals were dismissed by this Court on 8th December 2008 by slight modification in the condition in the following manner :
" We agree with the reasoning given by the learned Single Judge that the land in question was acquired by GIDC since many years, and therefore, the appellants-petitioners have no right to continue with the possession of the land. However, while dismissing the appeals, we extend the time to the appellants-petitioners to vacate the land upto 31st March 2009 on condition that the appellants shall file Undertaking before the trial Court that they shall hand over the possession of the land before 31st March 2009 and such Undertaking shall be filed within ten days from today.
This order is passed without prejudice to the appellants' contentions in the Civil Suits which are pending, and the same may be disposed of as expeditiously as possible. The appeals are disposed of accordingly.
In view of the order passed in the main Appeals, the Civil Applications do not survive and they stand disposed of accordingly."
6. The say of the petitioner that despite several correspondence addressed to respondent No. 2 for getting the land vacated from respondent No. 1, nothing was done and therefore they filed a Contempt Petition before this Court and also filed Civil Application No. 729 of 2011 as time for filing contempt application has been expired with there being the same was permitted to be withdrawn.
" Mr. Meena, learned counsel for the applicants seeks permission to withdraw the petition with a view to file substantive petition for getting fresh direction based on the application filed under the Contempt of Courts Act. Without expressing any opinion on merits permission is granted. Both applications shall stand disposed of accordingly."
7. It is the say of the petitioner that as there was a requirement of filing the petition for seeking fresh directions qua the respondent No. 1 for evicting land and directions qua for respondent No.2 for getting the possession of the said land, this petition is preferred.
8. Learned advocate Ms Bhatt appearing for respondent urges that this petition is not maintainable and further urged that against the order of the Division Bench respondent has preferred a petition before the Apex Court being Diary Number 12896 of 2012, on 13th April 2012 application for condonation of delay which is yet to come up on board. Various issues are raised in the affidavit- in-reply and challenge is made to the very petition. Accordingly to the respondent the only remedy available with the petitioner is to approach the trial court.
8. On hearing learned advocate Mr. Meena appearing for the petitioner it appears that this petition is preferred essentially with a view to see that the proceedings be once again preferred under the Contempt of Courts Act if fresh directions are issued by this Court. There are already orders passed by the learned Single Judge and the Division Bench directing eviction to the respondent which has not been challenged. It is further emerging that the suit pending before the trial court is also not proceeding as the respondent attempts to resort to every possible tactic not to allow the same to be proceeded.
9. As is apparent from the record the petitioner herein has needed to withdraw the contempt application on account of period and limitation prescribed under the statute. But, that ipso facto would not authorize this Court to invoke supervisory jurisdiction nor would that render petitioner remedy less against the litigant who with impunity choses nor to abide by direction and this Court. It clearly appears that despite there being order of the Single Judge as well as the Division Bench, the respondent No. 1 has chosen not to abide by such direction. It is also the matter of concern that the undertaking directed to be given before this Court is not on record and this date, fact remains that till whether such undertakings was filed or not is also not being clarified, such direction of handing over the possession is not complied with a sheer impudence.
10. It is for the petitioner to resort to appropriate remedy as relief which has been sought for, as mentioned hereinabove cannot be granted in the present petition. And moreover, repetitive directions would not serve the purpose. Contempt of Court because of non-compliance of direction is unavailable due to expiry of period and limitation, eviction still can be insisted be resorting to other statutes.
11. However, considering the objectionable attitude and conduct of respondent No. 1, who has been misusing process of law in wake of the directions issued earlier by the learned Single and the Division Bench, the trial court is directed to expeditiously proceed with the trial in Regular Civil Suit No. 660 of 2001 and shall dispose of the same not later than four months of receipt of this order.
11. Resultantly, this petition stands disposed of in above terms.
12. As regards the Civil Application preferred by the respondent No. 1 interalia seeking the direction for production of certain documents mentioned in the said Civil Application no merit is found in such application, particularly considering the facts and circumstances mentioned in this application.
(Ms.
Sonia Gokani,J.) mary// Top