ssm sm sm IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL CIVIL CIVIL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION FIRST FIRST FIRST APPEAL NO. 601 OF APPEAL NO. 601 OF APPEAL NO. 601 OF 2008 2008 2008 WITH WITH WITH CIVIL CIVIL CIVIL APPLICATION NO. 1253 OF 2008 APPLICATION NO. 1253 OF 2008 APPLICATION NO. 1253 OF 2008 Shri Narain Govind Pujari, Aged 42 yrs. carrying on his business of Pan Bidi and Cold Drink in a wooden stall situated at T.P.S., 10th Road, Opp, Shanti Kutir Building, Santacurz (E), Mumbai-400 055. ...Appellant. (Plaintiff) Vs. The Municipal Corporation of Greater Bombay. Having its office at Mahapalika Bhavan, Mahapalika Marg, Mumbai-400 001. ...Respondents. (Defendants) Mr.G.S.Godbole, for the Appellant. Mr.J.J.Xavier, for Respondents, B.M.C.. CORAM CORAM CORAM : ANOOP V. MOHTA,J. : ANOOP V. MOHTA,J. : ANOOP V. MOHTA,J. DATED DATED DATED : 8th April, 2008 : 8th April, 2008 : 8th April, 2008 JUDGMENT:- JUDGMENT:- JUDGMENT:- . Heard forthwith by consent of the parties. . This First Appeal is against the impugned judgment and order dated 29th January, 2008 passed by Ad-hoc City Civil Court Judge, in L.C.Suit No.4987 of 2001 ( 2 ) whereby the Suit filed by the Appellant was dismissed. 2. The Appellant-Plaintiff’s suit was for declaration that the notice dated 16th April, 2001 issued by the Respondents-The Municipal Corporation of Greater Bombay (for short, "BMC") under Section 314 of Mumbai Municipal Corporation Act-1888 (for short, "M.M.C.Act") was illegal and bad in law. 3. The learned City Civil Court Judge after considering the material and evidence on record held that the Respondents - BMC proved that the wooden stall is not on the private property and the same is situated on 10th Road, Santacruz (E), Mumbai and therefore, not granted any relief as claimed. 4. The averments made by the Appellant-Plaintiff itself shows that the wooden stall in question is situated at T.P.S. 10th Road, opposite Shanti kutir Building, Santacruz (E), Mumbai and therefore, it is the case also of the Respondents-BMC that the wooden stall in question is on the public road and therefore, issued the notice to remove the said stall within a period of 48 hours. Further, there is no material on record to show and even supported by the ( 3 ) Appellant-Plaintiff that the suit structure was raised with the permission and licensed one as contemplated under M.M.C.Act. The said unauthorized structure is on the side of the road and on the footpath causes inconvenience and obstruction to the pedestrians and to the traffic. 5. Section 312 to 314 of the MMC Act deals with the structure or fixtures which causes obstruction in street. Having once comes to the conclusion, the Respondents-BMC, therefore, as contemplated under Section 314 of the MMC Act issued 48 hours notice to remove such unauthorized structure. The invocation of power given under Section 314 to the Respondents-BMC is within the framework of facts and the law. There is no breach of principle of Natural Justice. There is no contra material to support the case of the Appellant to remain such unauthorized structure on the road. 6. The fact of holding licence under the Bombay Shops and Establishments Act-1948, Electricity Bills, Telephone Bills in no way sufficient to curtail the power of the Commissioner to remove the unauthorized structure or construction on the public road. The ( 4 ) Supreme Court in Maharashtra Ekta Hawkers Union & Anr. Maharashtra Ekta Hawkers Union & Anr. Maharashtra Ekta Hawkers Union & Anr. Vs. Vs. Vs. Municipal Corporation, Greater Mumbai & Ors. Municipal Corporation, Greater Mumbai & Ors. Municipal Corporation, Greater Mumbai & Ors. (2004) (2004) (2004) 1 S.C.C. 625 1 S.C.C. 625 1 S.C.C. 625 has already considered the various facets in support of the Respondents-BMC and against the persons like the Appellant with regard to the unauthorized structures/ obstructions on the public road and or pavements. Therefore, there is no question of granting any protection to the suit structure. The Trial Court, therefore, right in dismissing the Suit. 7. However, liberty is granted to the Appellant to make representation for alternate accommodation if provided and available under the Respondents-BMC scheme and or circular, if any. 8. The present first Appeal is dismissed. No costs. 9. In the result, the Civil Application is also dismissed. (ANOOP (ANOOP (ANOOP V. MOHTA, J.) V. MOHTA, J.) V. MOHTA, J.)