Oral Order

Bhargav D. Karia, J.

1. Heard learned advocate Ms. Simran Pahwa for Thakkar and Pahwa Advocates for the applicants and learned Assistant Government Pelader Ms. Bhumi Gandhi for the respondent nos. 1 to 3 and learned advocate Mr. Satyen B. Rawal for respondent no.4.

2. By this application, the applicant original petitioner alleged that the respondents have committed contempt of orderldated 24.07.2023 passed in Special Civil Application No.21024 of 2022 with Special Civil Application No.25126 of 2022.

3. It is alleged in the application that the respondents have not complied with the undertaking filed before this Court pursuant to order dated 24.07.2023. The directions issued by this Court in order dated 24.07.2023 are as under:

          "8. Special Civil Application No.25126 of 2022 preferred by respondent No.4 herein is allowed. The respondent authorities are directed to comply with the order dated 31.07.1992 passed by the learned Collector which is confirmed in the proceedings before the learned Gujarat Revenue Tribunal and this Court as well as the learned Division Bench of this Court. The respondents are directed to take appropriate steps for removal of illegal construction put up by the petitioner Trust.

          9. After passing of the order, learned advocate Mr. P. S. Champaneri, upon instructions from the President Mr. Hareshkumar K. Dave and the Vice President Mr. Mukundbhai B. Jani, submits that the petitioner Trust shall remove the construction as directed by order dated 31.07.1992 within a period of four weeks at their own costs and in any case on or before 21.08.2023. The said prayer is granted subject to filing of the undertaking by the President and the Vice President on the behalf of the Trust stating that they will comply with the order dated 31.07.1992 of the learned Collector on or before 21.08.2023. The said undertaking shall be filed by the President and the Vice President within a period of two days after serving the copy to the other side. The said undertaking shall be binding on the petitioner Trust. If the said undertaking is not filed before the Registry of this Court within a period of two days after serving the copy to the other side, the Respondents shall be at liberty to take appropriate steps for removal of the said construction immediately at the cost of the petitioner Trust. The petitioner Trust, after filing of the undertaking, shall file an affidavit of compliance in the present proceedings within one week from 21.08.2023. In case, no undertaking is filed by the petitioner Trust as enumerated herein above, the respondent authorities shall be at liberty to take immediate appropriate steps for removal of the said construction and they shall file an affidavit of compliance of the same."

4. Undertaking filed pursuant to the aforesaid order reads as under:

          "1. That in the above mentioned proceedings, this Honourable Court (Coram: Honourable Mr. Justice Aniruddha P. Mayee) had passed an order dated 24.07.2023, wherein this Honourable Court has directed the undersigned herein, to file an undertaking stating that the petitioner Trust shall remove the construction as directed by the order dated 31.07.1992 within a period of four weeks at the cost of Trust and in any case on or before 21.08.2023.

          2. It is further submitted that the undersigned herein undertakes that petitioner no. 1 trust will comply with the order dated 31.07.1992 of the Ld. Collector on or before 21.08.2023.

          3. The undersigned also undertakes that the Trust shall file an affidavit of compliance in the present proceedings within one week from 21.08.2023.

          4. I also undertake to serve the copy of present undertaking upon the Assistant Government Pleader.

          The undersigned undertakes to act as per the undertaking as directed by this Honourable Court in the above mentioned Special Civil Application."

5. Affidavit of compliance is also filed in Special Civil Application No.21024 of 2022 in line of undertaking filed by the respondent.

6. It appears that along with affidavit filed on behalf of respondent no.2, copy of Panch Rojkam dated 21.08.2023 is placed on record. However, it is not specified in the said affidavit as to whether Collector in the year 1992 recorded 6 rooms and one wall, is forming part of the structure in compliance of the order and undertaking filed before this Court. Thereafter additional affidavit is filed by respondent no.2 and respondent no.4 specifying as under:

          "(9) That what is being referred 'six rooms' throughout in the long history of litigation in last three decades in the breach of condition proceedings, the said six-room were part of the two storey building called the Aradhana Bhawan and Annapurna Bhawan, which are clearly referred at various levels of proceedings and had already been pulled down by the respondent No. 4 Trust as per the UNDERTAKING and there is ample material on the record of this contempt petition itself but even then it is falsely stated that still one room is not demolished which is nothing a complete and deliberate lie with a view to abuse the process of this contempt proceedings.

          (10) Therefore, it is respectfully submitted that in other words, the structure (referred as 'one room') which was not part of breach of condition case between the parties, is sought to be surreptitiously treated to be subject breach condition proceedings wherein the order dated 31-07-1992 has been passed and such intention of the applicant is not only with ulterior motive but is deliberately erring and thereby resorting to misuse of the contempt of process the jurisdiction.

          (11) That, in nutshell Collector order qua the Gnyati Wall, is no more in operation and consequently the so-called non-compliance being canvassed by the applicant regarding GNYATI NI WALL and some other room, are totally deliberate twisting of the undisputed facts with view to get removed such structure/s qua which order of Collector stood set aside qua such part. Whereas the so-called one room is nothing but an invented idea of one room so as to apply it to some structure not being part of the litigation."

7. In view of above averments, we are of the opinion that order dated 24.07.2023 and undertaking placed before this Court are complied with and there is no contempt of the order passed by this Court as 6 rooms and wall is now stated to be part of two-storeyed building which is already demolished. Therefore, there is no willful and deliberate disobedience of the order passed by this Court.

8. Misc. Civil Application stands disposed of.