S.S.Shinde - (1.) Rule, with the consent of the learned counsel for the parties made returnable forthwith and heard.
(2.) This Writ Petition is filed for the following substantial relief :- (a) this Hon ble Court be pleased to invoke the powers vested in it under Article 227 of the Constitution of India and Section 482 of the Cr.P.C. and be pleased to call for the records and proceedings in CCF No.4100562/SS/15 pending on the files of Ld. M. M. 41st Court, Shindewadi, Dadar, Mumbai and upon ascertaining the legality and proopriety thereof be pleased to quash and set aside CC No.4100562/SS/15 pending on the files of Ld. M. M. 41st Court, Shindewaid, Dadar, Mumbai
(3.) The learned counsel appearing for the Petitioner Mr. Samir Vaidya submits that the Assistant Engineer (B&F), A Ward, Mumbai Municipal Corporation was not authorized to issue notice inasmuch as the powers under the Mumbai Municipal Corporation are vested with the Commissioner. He submits that unless the powers vested with the Commissioner are delegated by the Commissioner to the Deputy Commissioner and in turn by the Deputy Commissioner to the said Engineer, the notice issued to the Petitioner is not legally sustainable. In support of the aforesaid contention, the learned counsel for the Petitioner has placed reliance upon the observations made by this Court (Coram : Karnik D.G., His Lordship then was) in the matter of Vasant S Naik v/ s. Municipal Corporation of Greater Mumbai and Anr.,2009 1 Bom. C.R. (Cri.) 157, in particular paragraph 10 on-wards. It is submitted that on the aforesaid ground alone this Petition deserves to be allowed. The learned counsel for the Petitioner further drew this Court s attention to the contents of the notice and submitted that in the light of the provisions of Section 381 of the Mumbai Municipal Corporation Act (for short the said Act ), none of the grounds mentioned in the said notice can be sustainable. It is further submitted that the Petitioner has kept wooden box outside of his house, and keeping the said wooden box would not cause any nuisance or would not cause collection of water in which mosquitoes breed or are likely to breed at the place where the wooden box is kept. The sum and substance of the submissions made by the learned counsel for the Petitioner is that, firstly the officer who has issued the notice has not been empowered to issue the said notice, and secondly none of the grounds stated in Section 381 of the said Act can be made applicable to the case of the Petitioner keeping in view of the fact that the Petitioner has only kept wooden box outside of his house.;