1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO. 286 & 288 OF 2009 WITH CIVIL APPLICATION NO. 1086 & 1088 OF 2009 Gopalkrishna N. Kamat Ramchandra Anant Bhandarkar........Appellants versus District Collector,Bombay & anr......... Respondents. Mr. A.Y. Sakhare Sr. adv. I/b P.M. Hovnur for the Appellants Mr. R.R.Patil AGP for the respondents CORAM: A. P. DESHPANDE, J. DATED : 24th MARCH, 2009. P.C.: 1. As an identical question of facts and law emerge for consideration in both these appeals, the same are heard together and are being disposed of by this common order. 2. The present appellants were alloted area from and out of the plot of land bearing no.10, admeauring 300 and 200 sq. fts. respectively. The land was alloted in favour of present appellants in the year 1978 for a peirod of three years. After the expiry of the lease period, the lease has not been renewed and therefore initially the resondents had called upon the present appellants, to vacate the alloted plot area and restore the possession to the respondents. Consequent to the notice in that regard, writ petitions came to be filed by the present petitioners in this court and the same came to be disposed of on a concession 2 made by the learned AGP that the respondent would adhere to the principles of natural justice and due process of law for obtaining the possession of the plot of land alloted to the appellant. It is the case of the appellants that subsequent to the passing of the order by the High Court no steps are taken with a view to recover the possession of the leased plot of land. 3. The respondents issued a notice on 27-2-2004 pointing out that the appellants were alloted land admeasuing 300 and 200 sq. fts. Respectively, however, they are in possession of the land admeasuring 546 sq.fts. and thus are found to have encroahed over the land admeasuring 246 and 340 sq. fts. respectively. The notice dated 27-2-2004 called upon the appellants to remove the structure and hand over the vacant possession of the land allegedly enroached by the appellants, which is adjecent to the land alloted to the appellants by the respondent. Aggrevied by the notice, the present appellants instituted a suit for declaration and injunction. The declaration sought for is that notice dated 27-2-2004 is illegal besides the same being in contravention with the order passed by the High Court dated 19-8-2003. 4. It is relevant to note that the appellants/plaintiff did not claim any legal right over the encroached portion. However, claimed a right that the appellants/plaintiffs cannot be dispossessed except in accordance with the procedure established by law. The trial court after perusing the evidence 3 led by the plaintiff/appellant came to the conclusion that the plaintiff/appellant do not claim any legal right over the encroached portion of the land and thus concluded that they are trespassers. Having recorded a finding about possession dehorse a legal right, the trial court has proceeded to dismiss the suit. Aggrieved by the judgment and decree passed by the trial court present appeals are filed. 5. The learned counsel for the appellant has raised two fold contentions. (1) that the impugned notice dated 27-2-2004 has been issued in breach of the directions issued by the High Court in its order dated 19-8-2003, and (2) that the notice dated 27-2-2004 is vague and does not make a reference to any provision of law and thereby the notice goes to deny the right to the appelant to effectively contest the notice. Further it is also canvassed that had the respondent mentioned the provisions of law, the appellants could have taken timely steps in seeking regularisation of the encroachment by moving the appropriate authority under the Land Revenue Code. 6. Dealing with the first contention, suffice to state that in the writ petiiton what was challenged was an order dated 17-4-2003. Perusal of the said order reveals that the respondent had demanded possession of the alloted plot of land admeasuring 300 and 200 sq.ft.s respectiely fron the present appellant/plaintiff and the court recorded a statement made by the learned AGP that after affording an opportunity of hearing 4 and in adherence to due process of law the possession of the suit plot would be obtained. It is obvious that the order passed in the writ petition so also the order under challenge therein did not pertain to the encroached area of plot of land which is subject matter in the present appeal. The subject matter of the earlier writ petition bearing no.1358/03 was the land actually alloted to the appellants in the year 1978 and the demad for possession was based on expiry of the term of the lease and its non renual after the expiry. In this view of the matter, I am in agreement with the view taken by the trial court that the impuged notice dated 27- 2-2004 has not been issued in breach of the directions issued by the Divison Bench of this court dated 19-8-2003 in W.P.N.1358/03. 7. True it is that the notice dated 27-2-2004 does not make a mention of the provision of law under which the appellants are called upon to vacate the encroached area of land but non mention of the provisions would not render the notice illegal. The notice otherwise very clearly mention the area of the land alloted to the appellants and the area of land in their possession and the area of the land which is encroached by the present appellans over and above the alloted portion of land. It is not the case of the present appellants that any land over and in execess of the 300 and 200 sq.fts. respectively was alloted or leased in their favour. They do not claim any legal right to possess the land which is allegedly encroached by them. The 5 encroachment is also admitted by the appellants in their evidence and it has been so held by the trial court and to be precise from the examination in chief filed by the appellant. In the absence of any legal right the appellants have retained the possession of the encroached land whih is owned by the respondent Stateand hence, the appellat's suit for declaration and injuction could not have been decreed by the trial court and has been rightly dismissed. Perused the judgment. The same does not call for any interference. In the result the appeals are summarily dismissed. 8. At this stage the learned Sr. Counsel for the appellant seeks continuance of the protection granted to the appellant initially by the trial court and thereafter by this court for a further period of eight weeks from today. The prayer appears to be reasonable and hence the same is granted. Protection to the possession of the appelant is extended for a period of eight weeks from today. 9. In view of the dismissal of the appeal the civil applications does not survive and the same are also dismissed. (A. P. DESHPANDE, J,)