Bombay High Court
Smt. Kamlabai Wd/O Ramaswami Kodati vs Manoj Kumar Surywanshi, Chairman The ... on 26 September, 2025
CP 451 of 2023.odt
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
CONTEMPT PETITION NO.451/2023
IN
SECOND APPEAL NO.376/2008 (D)
Smt. Kamlabai wd/o Ramaswami Kodati (Dead) through Lrs.
Ku. Sushila Ramaswami Kodati and others
...Versus...
Manoj Kumar Suryavanshi, Chairman The Nagpur Improvement Trust, Civil
Lines, Nagpur and another
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Office Notes, Office Memoranda of Coram, Court's or Judge's orders
appearances, Court's orders or directions
and Registrar's orders
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Mr. S.P. Kshirsagar, Advocate for petitioner
Mrs. R.P. Jog, Advocate for respondents
CORAM : ROHIT W. JOSHI, J.
Date of reserving the order : 18/09/2025 Date of pronouncing the order: 26/09/2025
1. The present contempt petition is filed by the respondents in Second Appeal No.376/2008 alleging willful disobedience of the judgment dated 04/07/2018 passed by this Court in the said appeal.
2. One Smt. Kamlabai wd/o Ramaswami Kodati had filed civil suit being Regular Civil Suit No.1148/1996 for seeking declaration that she had become owner of the suit property which is land admeasuring 0.04 HR (4305.6 sq.ft.) bearing Survey No.254/2 (City Survey No.1476) situated at Mouza Lendra, Tq. and District Nagpur by adverse possession and for perpetual injunction restraining defendants-Nagpur Improvement Trust (NIT) from interfering with her possession over the suit property. The petitioners are the legal CP 451 of 2023.odt 2 representatives of late Smt. Kamlabai Kodati. The NIT filed its written statement in the said suit opposing the same. The suit was dismissed by the learned 8th Joint Civil Judge Junior Division, Nagpur vide judgment and decree dated 31/08/2002.
3. Aggrieved by the aforesaid judgment and decree the petitioners preferred appeal being Regular Civil Appeal No.409/2002. The said appeal was allowed vide judgment and decree dated 30/04/2008 passed by the learned Ad hoc District Judge-8 Nagpur. The learned appellate Court has rejected the contention of the petitioners that they had become the owners of the suit property by adverse possession. However, the suit was decreed with respect to prayer for perpetual injunction. The relevant portion of the operative order and decree reads thus :-
"The defendant nos.1 and 2 are hereby restrained from removing construction of plaintiff over the suit land or any way disturbing her possession thereon."
4. Aggrieved by the aforesaid decree of perpetual injunction passed by the learned first appellate Court, the NIT preferred second appeal before this Court being Second Appeal No.376/2008. This Court has partly allowed the said appeal vide judgment dated 04/07/2018. It is held that the original plaintiff did not challenge the decree to the extent to which her claim for declaration of ownership by way of adverse possession was rejected and as such the challenge was only pertaining to the relief of perpetual injunction. It is observed that the learned first appellate Court had granted CP 451 of 2023.odt 3 blanket injunction in favour of the plaintiff and had thereby even restrained the appellants-NIT from taking action by following due process of law. This Court was pleased to hold that the NIT in its capacity as Planning Authority was entitled to take steps as are permissible in law after following due process against the respondent in second appeal i.e. original plaintiff. The decree passed by the learned first appellate Court was accordingly modified in the following terms.
"Accordingly, the decree passed in Regular Civil Appeal No.409/2002 dated 30-4-2008 is partly modified. The defendant Nos.1 and 2 are restrained from removing construction of plaintiff over the suit land or any way disturbing her possession thereon without following the due process of law."
5. The present contempt petition is filed stating that the respondents have in breach of the judgment passed by this Court illegally removed the structure of the petitioners standing on the suit property on 05/06/2023. It is alleged that not only the structure is demolished but the possession of the suit property is taken forcibly without following due process of law. In view of the aforesaid allegations, the petitioners have prayed for directions to the respondents to restore their possession over the suit property and to punish the respondents for the aforesaid contempt in accordance with law.
6. The respondents have entered appearance in the matter and filed preliminary submissions putting forth their stand. The respondents have tendered unconditional apology in paragraph no.2 of the submissions. They have thereafter justified their action of removing the encroachment. The CP 451 of 2023.odt 4 respondents have stated that the action against the petitioners is taken in exercise of powers vested under the Regulations framed under Section 90 (h-3) of the Nagpur Improvement Trust Act (for short hereinafter referred to as "NIT Act"). It is stated that the NIT had issued notices dated 22/01/2019 and 04/02/2019 for removal of encroachment and construction from the suit site. It is further stated that since the notices were not complied with, letter dated 02/06/2023 was also issued to the petitioners in this regard. The respondents have stated that action taken by them is strictly in accordance with law. Copy of Regulations dated 13/01/1976 is filed by the respondents on record along with additional affidavit dated 08/07/2025. The respondents have also stated in the additional affidavit that the contempt petition is filed beyond the prescribed period of limitation as prescribed under Section 20 and that the same is liable to be dismissed even on that ground.
7. The learned Advocate for the petitioners contends that the respondents have not disputed the fact that they have removed the construction standing on the suit site and have taken possession of the suit property. The learned Advocate states that the respondents have thus admitted that they have committed contempt of the judgment passed by this Court in Second Appeal No.376/2008. According to the learned Advocate for the petitioners, although the respondents, acting as Planning Authority could have removed the construction, it was not open for them to resume possession of the suit property by dispossessing the petitioners without filing a civil suit for possession. The learned Advocate contends that act of CP 451 of 2023.odt 5 taking possession unilaterally is in clear breach of the aforesaid judgment delivered by this Court, inasmuch as the same is not in accordance with law and by following due process of law.
8. Per contra, learned Advocate for the respondents contends that the petitioners have admitted that demolition of construction does not result in contempt since the same is done by the respondents acting as Planning Authority. As regards taking of possession, the learned Advocate has placed reliance on Regulations dated 13/01/1976 framed in exercise of powers vested under Section 90 (h-3) of the NIT Act. Learned Advocate contends that the suit property is situated within the area of operation/jurisdiction of the NIT. The learned Advocate has placed reliance on Regulation Nos.2, 3 and 7 of the said Regulations to contend that the action taken by NIT is in accordance with law and therefore, the same is taken by following due process of law.
9. In reply, learned Advocate for the petitioners contends that in the written statement filed in the civil suit the respondents - NIT had placed reliance on the same Regulations in order to contend that it had authority to take possession of the suit property based on the said provisions and that the said contention is finally rejected by this Court vide the aforesaid judgment.
10. Learned Advocate for the petitioners, therefore, contends that a clear case of willful and deliberate breach of non-compliance of the order passed by this Court is made out warranting strict action against the respondents.
CP 451 of 2023.odt 6
11. It is true that the respondents had contended in the written statement filed in the civil suit that they have authority to remove encroachment and unauthorized construction on Government land or NIT land situated within the area of operation of NIT and placed reliance on the said Regulations. However, perusal of the judgment passed by the learned trial Court, first appellate Court as also this Court will demonstrate that the said contention is neither accepted nor rejected. In fact, there is no finding with respect to the said contention by any of the Courts.
12. It must be stated that the present petitioners had pressed contempt petition only with regard to action of respondents-NIT taking possession of the suit property. During the course of arguments the grievance with respect to removal of construction is not raised. The sole contention raised by the learned Advocate for the petitioners was that in view of the judgment of this Court, the NIT could not have taken possession of the suit property without filing a suit for possession. It will therefore be appropriate to refer to Regulation Nos.2, 3 and 7 of the Regulations dated 13/01/1976, on which reliance is placed by the respondents.
"1. ......
2. No person shall, without the permission in writing of the chairman make any erection, permanent or temporary, on, or cover with a roof, awning projection or other structure, any Government or Trust property within the Trust area and no person shall, in contravention of any of the conditions attached to the grant of such permission retain or allow to be retained any erection, roof awning, projection or other structures as aforesaid on or above any such property.
CP 451 of 2023.odt 7
3. No person shall, without the permission in writing of the Chairman occupy any Government or Trust property within the Trust area or in contravention of any of the conditions attached to the grant of such permission to retain occupation thereto.
7. If any person does anything in contravention of the aforesaid regulations, the Chairman, may, by notice, require the breach of these regulations to be remedied by the person within a reasonable time."
13. Thus, the NIT can take recourse to the aforesaid Regulations only if encroachment is on Government land or land owned by it. Perusal of the judgment passed in Regular Civil Appeal No.409/2002 will demonstrate that while recording finding on point No.1 with respect to ownership of suit property, the learned first Appellate Court has recorded that neither the plaintiff Smt. Kamlabai (predecessor of petitioners) nor NIT were owners of the suit property. It is held that the defendant No.3 in the suit Madhusudan Joshi was owner of the suit property.
14. In view of the above, prima facie, the respondents could not have taken recourse to the aforesaid Regulations for removing encroachment and taking possession of the property. The respondents are, therefore, directed to file additional affidavit with respect to action of taking possession of suit property. Necessary affidavit be filed on or before 10/10/2025.
15. Stand over to 10/10/2025.
(ROHIT W. JOSHI, J.) Wadkar Signed by: S.S. Wadkar (SSW) Designation: PS To Honourable Judge Date: 26/09/2025 14:01:13