*1* IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.8706/2009 Vishram Raghunath Kulkarni. ..Petitioner -VERSUS- Municipal Corporation of Pune City and another. ..Respondents ............... Mr.A.V.Anturkar, Advocate i/b Mr.S.B.Deshmukh, Advocate for the Petitioner. Mr.A.P.Kulkarni, Advocate for the Respondent No.1 ............... CORAM: A.P.DESHPANDE, J. Dated 09th November, 2009. PC:- 1 The present Petitioner has filed a suit challenging the notice issued by the Respondent No.1/Corporation under Section 51 of the MRTP Act, 1966 r/w Section 258 of the Bombay Provincial Municipal Corporation Act and an order passed under Section 478 of the Bombay Provincial Municipal Corporation Act. The Petitioner has been directed to remove the structure in question, failing which, the Corporation authorities would be removing the same. 2 The Petitioner herein had obtained the permission of the Respondent No.2/Society to erect a stall on small plot of land admeasuring 7x7 feets. The permission was obtained by the Petitioner from the Corporation in the year 1987 to erect temporary *2* structure. The structure became dilapidated in the year 2004 which needed urgent repairs, hence, the Petitioner applied for permission to the Corporation for erection of the structure. The permission was granted by the Corporation on 09.11.2004 for a period of 11 months. Thereafter, the said permission was renewed from time to time and the last renewal is dated 25th March, 2009. The record reveals that the members of the society and the society have been objecting to renewal of permission to raise that temporary structure. Consequent upon the complaints received from the members of the Society, a show-cause notice came to be served on the Petitioner intimating him that the permission was granted subject to condition that the Petitioner produces a no-objection certificate from the Society and as the Petitioner has failed to produce the no-objection certificate from the society, why action under the law should not be taken. Apprehending coercive action at the hands of the Corporation, the Petitioner instituted a suit and filed an application for temporary injunction. The Trial Court rejected the application and aggrieved thereby the Petitioner/Plaintiff carried Miscellaneous Civil Appeal before the District Court and the Appellate Court by elaborate reasoned order has rejected the appeal. Hence, the Petitioner is constrained to file the present Writ Petition. 3 Perusal of the impugned order reveals multi-fold grounds for denying the discretionary relief of injunction. The Court has observed that the very grant of permission/renewal to set up the STD booth was a collusive action and the officers of Corporation appear to have colluded with the Petitioner as the Petitioner’s wife is an elected Corporator of the Corporation. The Court has then found *3* that the Petitioner has not approached the Court with clean hands. Both the Courts below have recorded the finding of fact that the Petitioner has failed to make out prima facie case for grant of injunction. The findings on other two questions as well i.e. irreparable loss and balance of convenience have also been answered against the present Petitioner. 4 The learned counsel for the Petitioner has submitted that the Assistant Engineer (Building Regulation) has no authority, power or jurisdiction to issue the impugned notice consequent upon which an order under Section 478 has been passed. There is no iota of doubt that there is power of delegation vested with the Commissioner of Corporation. However, the submission is that the order delegating the power dated 24th October, 1997 issued under Section 152 of the T.P. Act delegates the power in favour of the Assistant Engineer (Special Scheme). According to the learned counsel for the Petitioner, all the Assistant Engineers are not vested with the authority or power to issue the notice and the said power is only delegated in favour of some of the Assistant Engineers. 5 Per contra, the learned counsel for the Respondent No. 1/ Corporation has submitted that the Assistant Engineer (Building Regulation) was having charge of the post of Assistant Engineer (Special Scheme). 6 Just because an arguable question is raised in regard to delegation of power by the Commissioner of Corporation in favour of the Assistant Engineer that by itself cannot be the reason to grant discretionary relief under Order-39 Rule-1 & 2 of the Civil Procedure Code. Both the Courts have held that the concerned Engineer has *4* been delegated with powers by the Commissioner. Only because a question is raised about the delegated power of officer concerned, the same will not be sufficient ground for this Court to interfere with the impugned order in exercise of writ jurisdiction. In the result, I do not find any merit in the petition. The petition deserves to be dismissed. 7 At this stage, the learned counsel for the Petitioner seeks permission to make a representation to the Commissioner of Corporation with a view to save the structure over a area of 7x7 feets which was granted by the society to the Petitioner. The learned counsel for the Respondent No.1/ Corporation has no objection to permit the Petitioner to move an appropriate representation to the Commissioner of Corporation who in turn would take a decision in accordance with law. 8 Though the Writ Petition is dismissed, the permission to make a representation referred to herein above is granted. (A.P. Deshpande, J)