JUDGMENT - ASHOK AGARWAL, J.:---Whether the Municipal Commissioner can set aside an order passed by the Deputy Municipal Commissioner dropping action of demolition under section 351 of the Bombay Municipal Corporation Act (hereinafter referred to as the 'Act') is the question posed for my decision.

2. The appellants are the original defendants who are the Municipal Corporation of Greater Bombay and its Administrator and the respondent is the original plaintiff. The present appeal seeks to challenge a judgment and order dated 17/21/22nd October, 1986 passed by His Honour Judge Shri R.J. Purandare in Notice of Motion No. 6232 dated 12th December, 1984 in Suit No. 7851 of 1984 whereby the Notice of Motion taken out by the plaintiff for interim injunction restraining the defendants from acting in pursuance of the decision of the Additional Municipal Commissioner dated 3rd December, 1984 and from demolishing the suit shop belonging to the plaintiff was made absolute. The shop in dispute is known as Bombay Arts situate at 274, S.V. Road, Bandra (West), Bombay 400 050. A few facts leading to the passing of the impugned order are as follows :

3. On 21st April, 1982 the Inspector of the defendants found certain construction in progress. A stop work notice dated 24th April, 1982 was, therefore, issued under section 354-A of the Bombay Municipal Corporation Act. The plaintiff vide his reply dated 29th April, 1982 stated that he was merely replacing the C.P. sheets of his shed. On 6th September, 1982 the defendants issued a notice under section 351 of the Act calling upon the plaintiff to show cause why the suit structure should not be demolished. The plaintiff on 13th September, 1982 sent his reply. A hearing was given to the plaintiff by the Deputy Municipal Commissioner during which the plaintiff submitted a copy of the City Survey sheet obtained from the office of the Inspector of Land Records. During the inquiry one Shri Keer purporting to be an officer of the Bombay Suburban District was examined for the purpose of deposing to the authenticity of the copy of the survey sheet relied upon by the plaintiff. Ultimately by an order passed by the Deputy Municipal Commissioner on 24th August, 1983 the action under section 351 of the Act was dropped and the plaintiff was directed to pay certain amounts by way of penalty for construction without Municipal permission and towards regularisation fees. The decision was communicated to the plaintiff by the Ward Officer and the plaintiff thereafter paid the penalty and the regularisation fees.

4. On 31st October, 1983 a complaint was lodged by one Shri Ramdas Naik, the then Corroborator in respect of the structure of the plaintiff. Shri Soman, the then Additional Commissioner perused the file in respect of the inquiry and found that fraud had been perpitrated in the inquiry before the Deputy Municipal Commissioner. He found that Shri Keer who had been examined in the proceedings had been dismissed from service of the Bombay Suburban District way back on 16th August, 1977. The Additional Commissioner, therefore, issued a show cause notice dated 20th September, 1984 calling upon the plaintiff to show cause why the order dated 24th August, 1983 passed by the Deputy Municipal Commissioner should not be cancelled and why the structure of the plaintiff should not be demolished under section 351 of the Act. The plaintiff vide his reply dated 3rd October, 1984, inter alia, challenged the authority of the Additional Municipal Commissioner to review the order of the Deputy Municipal Commissioner. According to the plaintiff, the order of the Deputy Municipal Commissioner had become final. The Deputy Municipal commissioner after perusing the relevant record had come to the conclusion that the structure in question was in existence prior to 1962. The Deputy Municipal Commissioner directed the plaintiff to pay Rs. 1000/- for carrying out repairs without prior permission. The said amount of Rs. 1000/- was paid by

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