( 1 ) THE petitioner challenges by this special civil application, the communication dated 2. 9. 1992 of the Mamlatdar, respondent No. 3 herein, under which the petitioner was called upon to show cause as to why his stall should not be removed from the existing site i. e. , Station Road, Virpur and why assessment and fine should not be levied for unauthorised occupation.

( 2 ) THE facts of the case are that the petitioner is having a tea stall at Station Road, virpur since last more than four years. He has been given the electric connection by the gujarat Electricity Board since more than two years. He produced a copy of receipt of electricity Board dated 38. 1990 and bill for the months of May and June, 1990. The petitioner stated that carrying on his tea stall at the Station Road is not in any manner obstructing the traffic or is not causing any nuisance to the public. It has further been stated that at the same place there are about three or four other stalls and the respondent no. 3 has not touched to those persons. Under Annexure c, the Deputy Executive engineer asked the petitioner to remove his stall on or before 16th September, 1992 failing which it will be removed by the respondent No. 2.

( 3 ) THE counsel for the petitioner contended that the Mamlatdar was not the competent authority to take any action in the matter. The powers under Sec, 61 of the bombay Land Revenue Code could have been exercised by the Collector. It has further been contended that no inquiry under Sec. 67 of the code is held to decide the title of the land occupied by the petitioner. Lastly, the counsel for the petitioner contended that the respondents have no power to dispossess the petitioner from the land in dispute without following the due procedure under the Gujarat Public Premises (Eviction of Unauthorised occupants) Act, 1972.

( 4 ) ON the other hand, the counsel for the respondent contended that the petitioner has made an encroachment on the Station Road and he has unauthorisedly put a stall and is doing the business of selling tea. As the petitioner has made an encroachment on the public road, notice has been given to him by the Mamlatdar under Sec. 61 of the Bombay land Revneue code and the final order has also been passed which the petitioner has concealed from this Court. The Deputy Executive Engineer was also within its competence to ask the petitioner to remove the encroachment and failing which, the encroachment has to be removed. The powers are to be exercised by the Mamlatdar in a case where the petitioner has no right, title or interest whatsoever over the land and as he has made an encroachment on the public road, the provisions of the Act, 1972 are not required to be put in service. Though the petitioner being an encroacher on the public road even no notice is required but still the respondents acted fairly and the Mamlatdar has given, before taking any action of removing his encroachment on public road, a notice to the petitioner but instead of leaving the encroachment he has approached to this Court and for all these years he is continuing there under the interim order of this Court. In support of his contention the counsel for the respondent No. 2 placed reliance on the decision of the Honble Supreme Court in the case of Mangalore Chemicals and Fertilisers Ltd. vs. Dy. Commr. of Commercial Taxes, reported in AIR 1992 SC 152.

( 5 ) I have given my thoughtful consideration to the submissions made by the learned counsel for the parties.

( 6 ) DESPITE of repeatedly asking by the Court, the counsel for the petitioner is unable to show any evidence whatsoever in support of right, title or interest of the petitioner over the land in dispute. The counsel for the petitioner in fact has not disputed that the petitioner has made an encroachment on the public road. What he contended that he is there for last four years, and as such, he can only be evicted after following the procedure as laid down under the Act, 1972.