IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORDINARY ORDINARY ORIGINAL CIVIL JURISDICTION ORIGINAL CIVIL JURISDICTION ORIGINAL CIVIL JURISDICTION P.I.L. P.I.L. P.I.L. 46 OF 2008 46 OF 2008 46 OF 2008 Janhit Manch & Ors. Petitioners V/s. Mumbai Metropolitan Regional Development Authoirty & Ors. ..Respondents ....... Mr. Sandeep Jalan, Petitioner present in person Ms. Kiran Bagalia for Respodent No.1 Mr. R.S. Apte with Ms. P.A. Purandare for Respondent Nos.2 and 3 Mr. J.S. Saluja, AGP for Respondent Nos.4 and 5 ....... CORAM CORAM CORAM : SHRI J.N.PATEL & : SHRI J.N.PATEL & : SHRI J.N.PATEL & SHRI SHRI SHRI K.K.TATED, JJ. K.K.TATED, JJ. K.K.TATED, JJ. DATE DATE DATE :17TH SEPTEMBER, 2008 :17TH SEPTEMBER, 2008 :17TH SEPTEMBER, 2008 P.C.: . Heard. 2. The Petitioners have filed this petition seeking direction against the Respondent MCGM to initiate action against the owners of illegal stalls for removal thereof and prosecution under the provisions of law and to shortlist the officers responsible for taking actions against the said stall owners who failed in their duty : 2 : in initiating actions under the provisions of Maharashtra Service Rules and that this should be done within a time bound programme 3. On issuing notice to the Respondents, the Respondents have filed affidavit of Municipal Commissioner, wherein it is stated that the Corporation has taken necessary steps for removal of unauthorized stall owners and structures in so far as action taken against authorized licensed stalls and the same has been specified in Exhibit-I, in respect of action taken against unauthorized stalls on footpath as well as unauthorized hawkers. The list is enclosed as Exhibit-II and III in respect of inspection conducted by the Health Department. Action has been initiated for encroachment and all licensees and the defaulters have been prosecuted which has been specified in Exhibit-III. It is also stated that some of the stall holders have approached City Civil Court and have obtained orders injuncting the MCGM from taking action and they are still pending. It is submitted that the officials of the Corporation are taking repeated actions against the unauthorized hawkers which has been placed on record at Exhibit-IV. It is specifically stated that removal of Zunka Bhakar Kendra from the Municipal Road is yet to be : 3 : finalized and the action is to be taken according to the Policy decision. It is the case of the MCGM that their officers have been discharging their statutory duties and, therefore, no action is contemplated against them. 4. The Petitioner has tendered before the Court a rejoinder in reply to the affidavit filed by the Respondent Nos.1 and 2 and the same is taken on record. It is specifically contended that the Respondents have failed to comply with the orders of this Court to prevent illegal construction or deviations coming up though they have staff and machineries available with them and as observed by the Supreme Court by taking judicial notice of the fact in Civil Application No.12984 of 1999, AIR 2005, but no page number of the citation is given nor names of the parties are mentioned. 5. So far as the grievance of the Petitioners in respect of encroachment of public street and footpath by stall owners whether authorized/licensee or unauthorized is concerned, it has become a common phenomenon that Respondent MCGM or MMRDA has miserably failed to effectively prevent such encroachments being reoccuring despite orders to remove / demolish, passed by this : 4 : Court while disposing off another Petition filed by the Petitioner. It is clearly observed that the efforts of the local authority as well as statutory authority should continue, and preventive measures should be taken. 6. This Court can only express its displeasure regarding the conduct of the local authority in not dealing with the problem in a comprehensive manner and particularly while the litigations are pending in the City Civil Court where such encroachers, unauthorized stall owners have sought injunction and are allowed to carry on with their business. 7. This Court has time and again reiterated that the Respondent authority should in such cases prefer Appeal against such orders particularly when ex-parte injunctions are obtained against local and statutory authorities like MCGM and MMRDA from interfering with or removing unauthorized construction as well as inspite of the fact that such persons do not have any prima facie case, balance of convenience in their favour or would suffer irreparable loss. We expect the Respondent MCGM to approach the City Civil Court for vacating such ex-parte injunctions or even if such temporary : 5 : injunctions are confirmed and they are satisfied that the stall or structures is unauthorized and illegal particularly when the same is on public street or / footpath, prefer an Appeal against the order and get the injunction vacated rather than accepting the order of the City Civil Court in such matters and wait till the suit is decided, which will on an average take a period of 10 years. 8. This Petition can be disposed off with the aforesaid directions. Therefore, we find that if the Municipal Corporation has taken effective steps in the matter, the grievance of the Petitioners stands redressed. 9. The Petition stands disposed off accordingly. (J.N. (J.N. (J.N. Patel, J.) Patel, J.) Patel, J.) (K.K. (K.K. (K.K. Tated, J.) Tated, J.) Tated, J.)