1 mp t IN THE HIGH COURT OF JUDICATURE OF BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPLICATION NO. 5124 of 2008 IN FIRST APPEAL NO. 1950 of 2008 Suresh Narayan Devrukhkar .. Appellant versus Municipal Corporation of Gr.Bombay and Another .. Respondents ... Mr.R.A.Thorat for the appellant Mr.J.J.Xavier for the BMC. CORAM : D.G. KARNIK, J DATED : 14th November 2008 P.C.: 1. Heard. 2. By this application, the applicant before this court prays for an order of injunction restraining the municipal corporation for giving 2 effect to the notice dated 15th May 1997 i.e. to restrain the municipal corporation from removing the unauthorised stall. The applicant was granted a squatters licence under section 313A of the Mumbai Municipal Corporation Act, 1888 (for short ’the Act’) in respect of a pitch (open ground) admeasuring 1m x 1m belonging to the respondent. The applicant however erected a structure on the pitch also on the adjoining land by encroachment and started occupying 2.60m x 2m land with a stall on it without the permission of the respondent municipal corporation. He then applied to the respondent on 5th May 1997 for regularisation of the stall. The request was rejected and an by an order dated 15th May 1997, he was directed to remove the stall which was erected by him unauthorizedly and that too by committing an encroachment. The applicant then filed a suit for injunction restraining the corporation for giving effect to the notice. The suit has been dismissed and the present appeal is directed against the order of dismissal. 3. By this application, the applicant prays for an interim injunction pending the appeal. Counsel for the respondent strongly opposes grant of injunction. 3 4. Counsel for the applicant submitted that assuming that the stall was unauthorised and illegally erected by the applicant, the respondent ought to have followed the procedure prescribed u/s.105-B of the MMC Act and only after following the procedure prescribed therein, it could have issued notice for removal of the stall. In my view, the submission is misconceived. Section 314 permits the Commissioner to remove an unauthorised encroachment and erection made by an hawker without any notice. However, in view of the decision of the Supreme Court in the case of Olega Tellis, the respondent is required to give a short notice and accordingly, respondent corporation had issued two days notice vide letter dated 15th May 1997. Thereafter because of the present litigation, the respondent has not been able to remove the stall for 11 long years. Though admittedly the stall has been erected unauthorizedly and without obtaining the prior permission of the Corporation the respondent by recourse to litigation has managed to keep the unauthorised structure erected by him for 11 long years. In the circumstances, in my view, the applicant is not entitled to an interim injunction. Accordingly, the civil application is rejected. 4 (D.G. KARNIK, J)