1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO. 539 OF 2010 Sunanda Shivaji More ........Appellant versus The State of Maharashtra & anr.........Respondent. Mr. R.A. Thorat adv. for the Appellant. Ms. S.V. Mhaispurkar AGP for the Respondent. CORAM: B. R. GAVAI,J. DATED : 9th September, 2010. P.C.: 1. By consent taken up for final hearing. 2. By way of the present appeal, the appellant challenges the judgment and decree passed by the learned 5th Ad-hoc District Judge dated 6th March 2010 in L.C. Suit no. 3643/03. 3. The plaintiff had filed a suit claiming therein that he was owner and possessor of the structure measuring 19x6 ft. made up with wooden sheet walls and A.C. Sheet roof situated at survey no 341 corresponding to CTS no.629, near bldg. no.84 opp: Shiv Sena Shakha no. 80, Government colony, Bandra (east), Mumbai 400051. It is the case of the plaintiff that she is running the business in the said premises in the name of M/s. Jai Maharashtra Vada Pav Corner. It was the contention of the plaintiff that though according to the policy proclaimed by the respondent no.1 the 2 occupation of the appellant was entitled to be regularized the defendants were threatening the plaintiff with the demolition of the suit structure. 4. The suit of the plaintiff was contested by the defendants. It was the objection that the suit was not tenable in the absence of notice under 80 of CPC. It was also the contention that after giving proper notice, they had demolished the suit premises. 5. The learned trial court held that the plaintiff had proved that he was in occupation of the premises ad measuring 10x6 ft. which was in existence prior to 1995. It was also held that the defendants have failed to prove that the suit premises were demolished on 29-4-2003. The learned trial court therefore passed the decree restraining the respondent from demolishing or pulling down the suit premises ad measuring 10x6 ft, without following due process of law. 6. Perusal of the documents placed on record would reveal that the notice for removal of encroachment which was issued on 5-1-2002 by Tahasildar has shown that the premises is ad- measuring 19x6 ft. 7. It is a settled law that even for removal of encroachment, the authorities are required to follow due process of law. As to what is due process of law to be followed in particular facts situation has been laid down by various judicial pronouncement including the judgment of the Division Bench of this court in the case of Sopan Maruti Thopte Vs. BMC reported in 1996 Bom. 304. 3 I therefore find that the learned trial court instead of restricting the decree to 10x6 ft. ought to have decreed the suit for the suit premises ad measuring 19x6 ft. The appeal is therefore allowed in terms of prayer clause (2) as modified and replaced as such : defendants are hereby restrained from demolishing or pulling down the suit premises ad measuring 19x6 ft. without following due process of law. Needless to state that the authorities would be entitled to follow due process of law as laid down by this court in the case of Sopan Maruti Thopte , supra. 8. In view of the order passed in appeal, nothing survives in the civil application and the same is also disposed of. (B. R. GAVAI, J.)