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The Revenue Recovery Act, 1890
The National Environment Tribunal Act 1995
Article 226 in The Constitution Of India 1949
The Indian Penal Code, 1860
Rajatha Enterprises vs S.K. Sharma & Ors on 3 February, 1989
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Echjay Industries Pvt. Ltd. vs Union Of India (Uoi) And Anr. on 9 March, 1994
Ravindra Mutneja, Rajendra ... vs Bhavan Corporation A Partnership ... on 27 February, 2003
Mr. Rajendra Thacker vs Municipal Corporation Of Gr. ... on 5 May, 2004

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Bombay High Court
West Coast Builders Pvt. Ltd. And ... vs The Collector Of Bombay And Ors. on 8 February, 1994
Equivalent citations: 1995 (4) BomCR 200
Author: M Pendse
Bench: M Pendse, M Dudhat

JUDGMENT

M.L. Pendse, J.

1. Appeal admitted. Government Pleader on behalf of respondents Nos. 1 and 2, Shri Singhvi on behalf of respondents Nos. 3 and 4, and Mrs. Mody on behalf of respondents Nos. 5 and 6 waive service. By consent, appeal taken on board and called out for hearing.

The unfurling of facts of this appeal indicates to what extent powerful builder can manipulate to throw to the winds all rules and regulations in respect of development of properties in city of Bombay. The facts which are to be set out hereinafter make extremely sad reading and reflect how the appellants misused the officers of both the collector's office and Municipal Corporation Office to achieve their nefarious objects.

2. Appellant No. 2 is Director and shareholder of appellant No. 1 a private limited company carrying on business of real estate, development and of construction of multi-storeyed buildings in city of Bombay. On June 12, 1978, appellant No. 2 entered into agreement with Bomi Dubash who was owner of plot bearing City Survey No. 565 of Malbar Hill and Cumbala Hill Division for sale of plot for the purpose of development. The title deeds of City Survey No. 565 establish that the area was 3143 sq. metres. On the southern side of City Survey No. 565 is land bearing City Survey No. 438 and which covers area of 2,31,229.24 sq metres. Plot No. 438 is held by Parsi Panchayat right from year 1904 onwards and is known as Tower of Silence where the final rites of members of Parsi Community are performed. The area covered by Plot No. 439 being a cemetery, construction is not permitted on any portion of this plot.

On October 2, 1978, the appellants submitted plans to Bombay Municipal Corporation for construction of building consisting of ground and six floors on Plot bearing City Survey No. 565. The area mentioned in the plans was 3760 sq. yards and extract of city survey number submitted with the plans also indicates that the area of plot was only 3760 sq. yards. On December 23, 1978, on the basis of the plans submitted by the appellants, the Bombay Municipal Corporation sanctioned the plans and issued I.O.D. (Intimation Of Development). On August 24, 1979, R.C. Chawla, Architect on behalf of the appellants, submitted amended plans which also indicate that the area of City Survey No. 565 was only 3760 sq. yards. On September 16, 1979, the appellants applied to the Superintendent of land records for demarcation and measurement of the plot and on November 28, 1979, Bombay Municipal Corporation granted commencement certificate in respect of shops to be built on the ground floor. The certificate of commencement of the work for entire building was issued on February 3, 1981.

3. On May 16, 1981, P.D. Hawal, who was working as Superintendent in the Office of the city survey record, addressed letter to the appellants informing that on taking measurements, it was noticed that City Survey No. 565 admeasures 3615 sq. metres. On the strength of the letter and the certificate issued by P.D, Hawal, the appellants submitted amended plans to Bombay Municipal Corporation on September 28, 1981. The appellants claimed that the area of the plot was 3615.32 sq. metres and an error was committed earlier by indicating that the plot admeasures only 3143.34 sq. metres. The appellants sought sanction to the amended plans for construction of building comprising basement, ground floor and 8 upper floors. Curiously enough, within 5 days of submission of amended plans on October 3, 1981, Bombay Municipal Corporation sanctioned amended plans to enable the appellants to avail of F.S.I. (Floor Space Index) on the basis that the plot admeasures 3615.32 sq. metres. The appellants thereby secured additional F.S.I. on 564 sq. yards and additional built up area of 6750 sq. feet.

It is required to be stated at this juncture that it was subsequently discovered that P.D. Hawal working as Superintendent, City Survey Record, was involved in huge racket of forging the documents and the registers maintained in City Survey Record at the behest of powerful builders in the city. After the fraud committed by the builders with the connivance of P.D. Hawal to secure additional F.S.I. by falsely claiming that the area of plot was more than what was registered in the City Survey Record came to light. The Anti Corruption Bureau stepped in and started investigation and several complaints were filed against P. D. Hawal and which are pending determination in the Court of Special Judge, Greater Bombay. The Anti Corruption Bureau, after investigation, informed the Bombay Municipal Corporation that on measurement, it was noticed that the area of the plot was only 3114.86 sq. metres. The Anti Corruption Bureau addressed letter dated January 31, 1983 to the Bombay Municipal Corporation informing that fraud had been perpetuated with assistance of P.D. Hawal who had forged the certificate and the record in the City Survey Office and possibly with the connivance of some of the officers of the Bombay Municipal Corporation. The Anti Corruption Bureau informed the District Inspector of Land Records to survey the plot and Shri V.V. Patwardhan, who carried the survey noticed on June 29, 1984 that the plot admeasures 3232.18 sq. metres. On realising that the appellants had secured sanction of the amended plans on the strength of forged documents secured from P.D. Hawal, the Bombay Municipal Corporation issued show cause notice dated January 30, 1985 to appellant No. 2 and Bomi Dubash who was the owner of the plot to explain as to why part of 6th floor and entire 7th and 8th floor should not be demolished to limit development to the permissible F.S.I. The Bombay Municipal Corporation claims that despite repeated efforts, appellant No. 2 avoided acceptance of service. The Bombay Municipal Corporation also served show cause notice on Architect R.C. Chawla to explain why the licence to survey issued by the Bombay Municipal Corporation should not be suspended. The Anti Corruption Bureau on February 7, 1985 furnished to the Bombay Municipal Corporation with fresh measurements of the plot.

4. On October 10, 1984, respondents Nos. 5 and 6 instituted Writ Petition No. 2171 of 1984 under Article 226 of the Constitution of India on the Original side of this Court for a direction to the Bombay Municipal Corporation and State Government to carry out the duties cast under the provisions of the Bombay Municipal Corporation Act and Maharashtra Land Revenue Code. The respondent No.5 is a registered society, the objects of which are to look after environments in all aspects. The respondents Nos. 5 and 6 claim that the appellants by playing fraud and by using forged documents have secured sanction of plans from the Bombay Municipal Corporation to construct basement, ground floor and 8 upper floors in violation of the Development Control Rules for Greater Bombay. The respondents Nos. 5 and 6 claimed that the construction of 7th and 8th floor and part of 6th floor clearly exceeds the available F.S.I. for the area of City Survey No. 565. The respondents Nos. 5 and 6 claimed that inspite of Anti Corruption Bureau noticing that the fraud was committed by using forged documents, the Collector and the Municipal Corporation are not taking any steps for demolition of the additional floors constructed in breach of Development Control Rules for Greater Bombay. Before setting out what transpired at the hearing of the petition, it is necessary to refer to some of the events which had transpired at the behest of the appellants.

5. After the Anti Corruption Bureau furnished to the Corporation and the Collector the measurements of the plot, the Collector of Bombay in exercise of powers conferred under section 300(1) of Maharashtra Land Revenue Code recorded a finding, on July 9, 1985 by issuing an order, that area of the plot bearing City Survey No. 565 was only 3143.34 sq. metres. The appellants challenged the order of the Collector by filing Revision Application before Maharashtra Revenue Tribunal and the Tribunal by order dated June 18, 1986 set aside the order of the Collector and remanded the proceedings for fresh determination. On remand, the Superintendent of Land Records on October 17, 1986 informed the appellants that the site would be re-surveyed on October 23, 1986. After re-surveying City Survey No. 565, the Collector noticed that area of plot was only 3176.37 sq. metres and issued a fresh show cause notice to the appellants on December 23, 1986 to explain why the area of City Survey No. 565 should not be treated as final and the land records accordingly amended.

The appellants challenged the issuance of show cause notice by the Collector by filing Writ Petition No. 3586 of 1986 under Article 226 of the Constitution of India before learned Single Judge of this Court and immediately secured ad-interim injunction restraining the Collector from proceeding with hearing of the notice or taking any steps. The order was secured on January 1, 1987. The record indicates that after securing ad-interim order and inspite of pendency of the petition, Special Secretary to the Government (Revenue) held a meeting in his Chamber and which was attended by Collector and appellant No. 2. The Collector was directed to hear appellant No. 2 and pass fresh order after the plot is re-measured by the Superintendent, Bombay City Survey and Land Records and technically qualified representative of appellant No. 2. In pursuance of this understanding, plot was re-measured and found to be 3217.37 sq. metres. After the measurements were taken, the appellants moved learned Single Judge for vacating ad-interim order granted in Writ Petition No. 3586 of 1986 and on November 18, 1987, ad-interim relief was vacated. The Collector thereupon passed order under section 300(1) of Maharashtra Land Revenue Code on November 25, 1987 holding that area of City Survey No. 565 is 3217.37 sq. metres. The Collector directed that the land records maintained in City Survey Office should be accordingly corrected. It is necessary to point out at this juncture that the Collector passed order on November 25, 1987 on the basis that area found was accepted as correct by the appellants. The order passed by the Collector specifically refers to the fact that the appellants accepted the area of plot as 3217.37 sq. metres. As the order passed by the Collector was on the basis of admission on the part of the appellants, the order of the Collector was never challenged by the appellants in any forum and the order of the Collector acquired finality. Inspite of the Collector passing order determining the area of City Survey No. 565 and which clearly indicates that the appellants exceeded available F.S.I. by construction of a building having more than six floors, the Bombay Municipal Corporation did not proceed with show cause notice.

6. The appellants realising that the decision of the Collector, which was on admission of the appellants, would have its repercussions, approached Deputy Secretary to Government of Maharashtra, Revenue and Forests Department to suggest to the Collector to review the order of November 25, 1987 after securing a formal application from the appellants. The Deputy Secretary to the Government of Maharashtra, Revenue and Forests Department, immediately obliged the appellants by addressing letter dated April 26, 1989 to the Collector of Bombay. The letter makes a curious reading. The attention of the Collector was invited to order dated November 25, 1987. The letter then recites that the order is silent as regards the status of an area admeasuring 339.25 sq. metres which seems to be a part of City Survey No. 565 and, therefore, it would be necessary for the Collector to review the order. The order further recites that the copy of the letter is forwarded to the Director, Anti Corruption Bureau with a request not to proceed further in the investigation and await the decision of the Collector on the review of order dated November 25, 1987. We have no words to express our surprise at the ability of the appellants to secure such letter from the Deputy Secretary to Government of Maharashtra, Revenue and Forests Department. It would be appropriate at this stage to set out what is the claim in respect of additional area admeasuring 339.25 sq. metres made by the appellants. As mentioned hereinabove, the plot to the south of City Survey No. 565 is a huge area of Plot No. 438 held by Parsi Panchayat and used as cemetery. The appellants started claiming that they had encroached upon the portion admeasuring 339.25 sq.metres and are in wrongful occupation of the said area and the said area should be included in City Survey No. 565. Even before the Deputy Secretary to Government of Maharashtra, Revenue and Forests Department, addressed letter dated April 26, 1989 to the Collector, curiously City Survey record maintained by City Survey Office was amended and entry to the following effect was inserted by Assistant Superintendent on August 16, 1988.

The entry reads as under :

"Further additional area of south side to the extent of 339.25 sq. metres which is in possession of M/s. West Coast Builders Pvt. Ltd. vide M.R. No. 14/88-89 Ref. CSLR/S&LRII/T2/CS No. 565 of M & C Hill Divn. 1987-88."

It is not in dispute that the appellants had not made any application to the Assistant Superintendent to make such mutation entry and alter the register. The Government Pleader appearing on behalf of the Collector stated that there is not a piece of document on record to indicate how and why the entry was inserted save and except that possibly the Assistant Superintendent misunderstood the order of the Collector passed on November 25, 1987. It is impossible to digest such lame explanation.

After securing letter from the Deputy Secretary to Government, Revenue and Forests Department, the appellants came back to this Court where Writ Petition No. 3586 of 1986 which was filed only to challenge issuance of show cause notice by the Collector was still kept pending. The learned Single Judge was informed that in pursuance of the directions issued by the Deputy Secretary to Government of Maharashtra, Revenue and Forests Department on August 2, 1989, the appellants had sent an application to the Collector seeking review of order of November 25, 1987 on the basis that the appellants are in possession of extra land admeasuring 339.25 sq. metres. On February 6, 1992, Minutes of Order were filed before learned Single Judge and the minutes recite that the Collector should decide the application for review within six weeks from the date of the order. Subsequently, period of six weeks was deleted by consent of parties and it was provided that the Collector may decide the application as expeditiously as possible. We are shocked at the manner in which the appellants, Collector and State of Maharashtra secured such order from this Court. The petition became infructuous when show cause notice issued by the Collector had come to an end when on November 25, 1987, the Collector with consent of the appellants had finally determined the area of City Survey No. 565. Inspite of that, the petition was kept pending and order was secured that the review application which was filed two years after the final order was passed by the Collector should be disposed of expeditiously. In our judgment, the parties acted with gross indiscipline in securing such order of the Court.

Whatever may be the manipulations employed by the appellants in securing the amended entry on August 16, 1988 in the record of City Survey Office, the letter secured from the Deputy secretary to Government, Revenue and Forest Department, on April 26, 1989 and the Minutes of order secured from this Court on February 6, 1992, the Collector examined the Review Application filed by the appellants and by letter dated February 16, 1993 informed the appellants that on the basis of the record and documents available in the office and in the light of the provisions of Maharashtra Land Revenue Code, the Collector does not find it necessary to review the order passed on November 25, 1987. We are happy to record that the Collector showed courage and did not bow down to the suggestive directions given by the Deputy Secretary to Government, Revenue and Forests Department by communication dated April 26, 1989 and which communication was obviously at the behest of the appellants. The Collector also realised the manipulations by the appellants in amending City Survey record by showing additional area of 339.25 sq. metres in possession of the appellants and directed deletion of the same some time in July 1993.

7. With this background, it is now necessary to revert back to Writ Petition No. 2171 of 1985 filed by Bombay Environment Action Group. The petition came up for hearing before Division Bench of which one of us (Pendse, J.,) was party on July 29, 1993. The Division Bench realised that the office of the Collector and the office of the Bombay Municipal Corporation was showing apathy to take action against the appellants and was desirous of issuing directions to both the authorities. During the arguments, Shri Ghelani who appeared on behalf of the appellants in all the proceedings all stages, contended that application was filed before the Collector to include area of 339.25 sq. metres in City Survey No. 565, Shri Ghelani submitted on behalf of the appellants that the appellants are claiming that the area of 339.25 adjoining City Survey No. 565 should be included in City Survey No. 565 to enable the appellants to save the construction carried out on City Survey No. 565. Shri Ghelani, inspite of repeated enquiries, did not disclose on what date the application was made or did not produce the copy of the application. At that juncture, only the appellants were conscious of the fact that the Review Application filed on August 2, 1989 was turned down by the Collector on February 16, 1993, but that fact was deliberately suppressed and it was claimed that application had remained undecided. Shri Ghelani submitted that unless the application dated August 2, 1989 is finally decided and the question as to whether area of 339.25 sq. metres should be included in City Survey No. 565 is finally settled, it is not open for the Bombay Municipal Corporation to proceed to demolish part of the sixth floor and entire 7th and 8th floor on the basis that rule of F.S.I. was breached. The Division Bench accepted the claim of the appellants that the application filed by the appellants should be disposed of by the Collector before the Bombay Municipal Corporation proceeds to take any further action. The Division Bench realised the tactics employed by the appellants to delay the proceedings after completing construction in breach of the rules. The Division Bench was also impressed by the submission issued on behalf of Bombay Environment Action Group that not only the appellants have far exceeded the available F.S.I. by erecting 7th and 8th floor but the conditions on which I.O.D. was granted by the corporation was breached in as much as the basement was converted in shop premises, some of the balconies were enclosed to use as rooms and additional construction was made in the restaurant on the ground floor. The Division Bench thereupon gave direction both to the Collector and the Bombay Municipal Commission by fixing a schedule as to how the proceedings should be disposed of.

The Collector was directed to personally consider the application claimed to have been filed by the appellants for inclusion of area of 339.25 sq. metres and disposed of the application on or before August 27, 1993 without fail. The Collector was given direction to hear all the parties and passed a speaking order. The Division Bench made it clear that the appellants shall not be permitted to file any further application, nor any Director of the appellants should be permitted to make any fresh application. The Municipal Commissioner was directed that after receipt of the order of the Collector to personally examine the construction to determine whether (a) the appellants had exceeded the permissible F.S.I. and (b) whether any part of the construction is carried out contrary to I.O.D. granted. The Municipal Commissioner was directed to pass speaking order on or before September 30, 1993 and the Corporation was directed to take consequent action forthwith upon the basis of order passed by the Municipal Commissioner. With this direction, the petition was disposed of and with a specific direction that any application in respect of carrying out of the orders should be placed before the same Bench.

8. What transpired thereafter before the Collector clearly indicates how dishonest the appellants are in making claims. As mentioned hereinabove, the appellants and their Advocate deliberately suppressed the fact that the Review Application dated August 2, 1989 was already disposed of by the Collector on February 16, 1993. By making a false representation that the application is still pending before the Collector, direction was secured from this Court that the Collector should dispose of the pending application by speaking order before August 27, 1993. After the Division Bench delivered judgment on July 29, 1993, on August 6, 1993, Attorneys of the appellants addressed letter to the Collector enclosing a copy of the alleged letter written by the appellants on February 22, 1993 to the Collector. The proceedings were taken up by the Collector on August 13, 1993 and the parties present before the Collector were Officers of the Anti Corruption Bureau, the Officers of the Bombay Municipal Corporation, the members of the Bombay Environment action Group, appellant No. 2 and his Advocate Shri Ghelani. The fact that the Collector had disposed of the Review Application filed on August 2, 1989 long before the order was delivered by the Division Bench could not be debated before the Collector and, therefore, novel method was found out by the appellants and their advocate to claim that after the Collector rejected the Review Application on February 16, 1993, the appellants had addressed a communication dated February 22, 1993 to the Collector in continuation of the earlier Review Application and requested to reconsider the matter. Shri Ghelani claimed before the Collector that the High Court has directed that the pending application should be disposed before August 7, 1993 after hearing the parties and, therefore, the Collector was bound to consider the pending application dated February 22, 1993. The Collector realised that false plea is set up on behalf of the appellants as the alleged communication dated February 22, 1993 was never received in the office of the Collector, nor there was any record available with the appellants to indicate that such communication was dispatched and received by the office. The Collector though that in view of the specific direction of the Division Bench of this Court that no further application on part of the appellants or any other Director should be entertained, it was not possible to take on record the copy of the alleged communication dated February 22, 1993 and review the order passed on November 25, 1987. The Superintendent in the office of the Collector then prepared the minutes of the Roznama of what transpired and what Collector has decided and the copy was forwarded for action to the Municipal Commissioner.

9. Realising that the ploy employed by the appellants to mis-lead the Collector by falsely claiming that the communication addressed on February 22, 1993 to reconsider the rejection of the Review Application and that is required to be construed as order of Division Bench of this Court the appellants adopted another strategy. The appellants appeared before the Municipal Commissioner who was required to determine the issues directed by the Division Bench on July 29, 1993 and it was claimed that the Collector had failed to carry out the directions given by the High Court and consequently, the Municipal Commissioner cannot rely upon the entries entered into record in pursuance of order passed by the Collector on November 25, 1987. It was claimed before the Municipal Commissioner that the Municipal Commissioner cannot proceed with the hearing as directed by the Division Bench unless the Collector carries out the directions of the High Court. The Commissioner naturally refused to accede to such worthless and proceeded to hear the parties. The appellants then through their Advocate Shri Ghelani filed written submission on September 17, 1993 dealing with the objection raised to the complaint of violation of F.S.I. and breaches of I.O.D. The exhaustive and detailed letter sent by the lawyer on behalf of the appellants was taken on record. The Municipal Commissioner then as suggested by the parties decided to inspect the building and accordingly on September 18, 1993 the building was inspected. The appellants deliberately chose to remain absent at the time of the inspection.

10. Realising that the Municipal Commissioner is likely to pass order adverse to the interest of the appellants, the appellants took out notice of Motion No. 529 of 1993 in Writ Petition No. 2171 of 1984 which was disposed of by the Division Bench claiming that the Collector should be ordered and directed to consider and dispose of on merits the application dated February 22, 1993. The appellants also claimed that the Municipal Commissioner should be directed to stay hearing until the Collector completes the hearing and decides the application dated August 2, 1989 along with application dated February 22, 1993. As per the order of the Division Bench, the Notice of Motion was moved before the same Bench and the Bench declined to grant any ad-interim relief. The result was that the Municipal Commissioner as per the direction of the Division Bench proceeded to pass order dated September 30, 1993. The Municipal Commissioner by detailed reasoned order overruled the contention of the appellants that available F.S.I. in respect of City Survey No. 565 should be considered on the basis of additional area of 339.25 sq. metres out of City Survey No. 438 which is alleged to be in occupation of the appellants. The Commissioner held that the area as reflected in P.R. Card and City Survey extract is only relevant to determine whether F.S.I. was exceeded and on the strength of the order passed by the Collector holding that area of City Survey No. 565 was 3217.87 sq. metres, held that the appellants had exceeded F.S.I. to the extent of 4692.42 sq. feet. The Commissioner directed that the entire 7th and 8th floors admeasuring 1000 sq. feet and 2592.00 sq. feet respectively should be demolished and in addition an area admeasuring 300.42 sq. feet from 6th floor and for which occupation permission is not granted should also be demolished. The Municipal Commissioner directed that the appellants should demolish two floors and part of 6th floor on or before October 31, 1993. The Commissioner further directed that two rooms admeasuring 713.50 sq. feet unauthorisedly constructed below the overhead storage tank should also be demolished. The Municipal Commissioner directed that if the demolition is not carried out by the appellants, then the corporation will demolish the area and recover the cost. The Commissioner also noted that the occupants of the building had violated the conditions on which I.O.D. was granted in as much as basement was converted to shop premises and terrace as well as balconies were covered for user and the restaurant on the ground floor was guilty of construction which was unauthorised. The Commissioner noted that notices were issued to the occupants for breaches committed but the occupants had moved the Court and secured stay orders, with the result, the Corporation was not in a position to take immediate action. The Commissioner directed that the Bombay Municipal Corporation should take up the matter with the authorities and expedite the proceedings adopted against those who had committed breach of I.O.D. After the Commissioner passed the order, Notice of Motion No. 529 of 1993 taken out by the appellants before the Division Bench was withdrawn on October 1, 1993.

11. The appellants then instituted Suit No. 6486 of 1993 in the City Civil Court at Bombay to challenge order passed by the Municipal Commissioner directing demolition. To this suit, the appellants did not join the Collector, the State Government or Bombay Environment Action Group. The appellants took out Notice of Motion No. 4933 of 1993 in the suit instituted for seeking interim relief. Expecting that the appellants will try to defeat the order of the Commissioner, the Bombay Environment Action Group appeared before the learned Judge. The interim relief sought against the corporation restraining Bombay Municipal corporation from implementing the order of the Commissioner was resisted by the Bombay Municipal Corporation. It was pointed out that the suit was not maintainable as the statutory notice required to be served on the corporation before institution of the suit was not maintainable as the statutory notice required to be served on the corporation before institution of the suit was not served. The City Civil Court, Bombay by judgment dated November 4, 1993 rejected plaint under Order 7, Rule 11 of Code of Civil Procedure. The learned Judge declined to grant any interim relief. The decision of the Bombay City Civil Court was challenged by the appellants by filing First Appeal Stamp No. 29838 of 1993 before this Court but appeal was withdrawn on January 13, 1994 and liberty was sought to file writ petition under Article 226 of the Constitution of India on the original side of this Court to challenge the order passed by the Collector and the Municipal Commissioner. The learned Judge granted the leave. The appellants then filed Writ Petition No. 391 of 1994 before the learned Single Judge on the original side of this Court. To this petition, the Collector, Municipal Corporation and Bombay Environmental Action Group were made party respondents. The graveman of the complaint before the learned Single Judge was that the Collector failed to carry out the directions of the High Court by not examining the merits of the alleged application dated February 22, 1993 made by the appellants and the Commissioner was guilty of violations of principles of natural justice, in as much as the appellants were not given sufficient opportunity to present all aspects of the matter. The learned Single Judge was not impressed by either of the submission and by a reasoned order dated January 28, 1994 summarily dismissed the petition. The order of the learned Single Judge is under challenge.

12. Shri Jethmalani, learned Counsel appearing on behalf of the appellants, reiterated the submissions urged before the learned Single Judge. The first contention urged by the learned Counsel was that the Collector of Bombay had failed to carry out the directions given by the Division Bench of this Court by order dated July 29, 1993. The learned Counsel urged that the directions given by the Division Bench to the Collector were specific and the Collector was directed to dispose of the application on or before August 27, 1993 after hearing all the parties and by passing speaking order. The learned Counsel urged that the application which was claimed by Shri Ghelani, on behalf of the appellants, to be pending before the Collector was one which was forwarded on February 22, 1993 and as that application was not considered by the Collector, the order of the Division Bench was clearly violated. We are unable to find any merit in the contention and we are surprised at the false stand taken by the appellants before the Collector. We depricate the manner in which the appellants tried to mislead this Court and the Collector. Shri Jethmalani could not dispute that the appellants had filed application before the Collector on August 2, 1989 seeking review of the order passed by the Collector earlier on November 25, 1987 and which order was on the consent given by the appellants. We have, hereinabove, exhaustively dealt with the manner in which the appellants tried to avoid the consequences of order passed by the Collector on November 25, 1987. The appellants surrepticiously secured the entry in City Survey record, then moved the State Government and secured the directions from the Deputy Secretary to Government, Revenue and Forests Department to the Collector and then filed application for review on August 2, 1989. The Review Application was dismissed by the Collector and the decision was communicated to the appellants on February 16, 1993. Shri Jethmalani did not dispute that the appellants were conscious of the fact that Review Application was dismissed. The learned Counsel had no explanation as to why this fact was suppressed by the appellants and their counsel when Division Bench delivered judgment on July 29, 1993, and it was claimed that the application was still pending. As mentioned hereinabove, the Division Bench was apprehensive of the stand taken by the appellants and, therefore, it was made clear that the Collector shall dispose of the pending application and any fresh application should not be entertained. The appellants then realised that as it was not possible to file any fresh application, it was necessary to put up a false claim that communication dated February 22, 1993 was addressed to the Collector to reconsider the Review Application. The fact that such communication was forwarded to the Collector was obviously not mentioned by the appellants and their counsel when the order dated July 29, 1993 was delivered by the Division Bench. Finding that it was not possible for the Collector to take any action on the Review Application filed on August 2, 1989 on behalf of the appellants an attempt was made to claim that the application was forwarded on February 22, 1993. The Collector rightly pointed out that the claim was false and there is nothing on record in the office of the Collector to indicate that such application was forwarded. It is interesting to note that entire correspondence at all stages was made by the firm of Attorneys of which Shri Ghelani is partner on behalf of the appellants and only this communication dated February 22, 1993 is directly sent by the appellants to the Collector. The Collector, in these circumstances, very rightly held that it is not open for the Collector to examine the alleged communication dated February 22, 1993.

13. Shri Jethmalani raised four contentions to urge that the order of the Collector fails to carry out the directions given by the High Court. The first contention was that the order dated February 16, 1993 passed by the Collector no longer remains in operation in view of the directions of the High Court and the order of High Court operates as constructive res-judicata and it is not open for the Collector to claim that there was no pending application at the time when the High Court had given direction. We are unable to appreciate how the doctrine of constructive res-judicata has any application to the facts of the case. The learned Counsel then submitted that the order dated February 16, 1993 is no order at all and should be treated as non-est. It was contended that the order does not comply with the direction issued by the Deputy Secretary, to Government of Maharashtra, revenue and forests department. We are unable to find any merit in this contention also. It was not open for the Deputy Secretary to Government of Maharashtra, Revenue and Forests Department to give direction as to how the Collector should exercise the power. The suggestive instructions issued by the Deputy Secretary to Government of Maharashtra, Revenue and Forests Department can never be binding on the Collector who was exercising statutory powers under the provisions of Maharashtra Land Revenue Code. Shri Jethmalani then submitted that the Collector has not decided anything while passing order dated February 16, 1993. We are unable to find any merit in this contention also. The Collector has specifically observed that on the basis of the record and documents available in the office and in the light of provisions of Maharashtra Land Revenue Code, there is no reason to review the order dated February 25, 1987. We do not find any merit in the claim of Shri Jethmalani that the Collector has not decided anything. The last contention raised by Shri Jethmalani is that the Advocate for the appellants had made a factual error by not disclosing to the Division Bench the fact that Review Application was already disposed of by the Collector. Shri Jethmalani submitted that whatever may be the defaults committed by Shri Ghelani Advocate of the appellants, those defaults should not visit on the head of the appellants. The submission amuses us. Shri Ghelani was representing appellants all along and it is not fair now for the appellants to claim that suppression of relevant facts on the part of their Advocate should not affect their interest. Apart from this considerations we are unable to find any defect in the order of the Collector passed on August 13, 1993. The Collector was duty bound to carry out the order of the High Court and not to permit the appellants to produce any fresh application for consideration. The Collector has very rightly held that the alleged communication dated February 22, 1993 is nothing but a bogus attempt on the part of the appellants to create record. We are in entire agreement with the finding of the Collector and we refuse to accept the claim of the appellants or his Advocate Shri Ghelani that any such communication was sent. The chronology of the proceedings have more than reflected that the appellants are total liar and it is impossible to place any reliance on their word. In our judgment, the order passed by the Collector does not suffer from any infirmity.

14. Shri Jethmalani also urged that on August 16, 1988, Assistant Superintendent had made alteration in City Survey record by entering that further additional area of south side to the extent of 339.25 sq. metres is in possession of the appellants. We have already pointed out hereinabove the mysterious circumstances in which the entry came to be made by two Assistant Superintendents, Shri Zamnani and Shri Sejwal. Shri Zamnani has already obtained voluntary retirement from service and Shri Sejwal is transferred to another Department. The less said about this entry is better. Shri Jethmalani tried to urge that the Assistant Superintendents had power under the Maharashtra Land Revenue Code to make these entries and the Government Pleader has suggested that the entry seems to have been made by erroneous interpretation of the order dated November 25, 1987 passed by the Collector. It is open for the Government to take a charitable view but it is impossible for the Court to accept the same. Shri Jethmalani submitted that the Collector deleted the entry made by the Assistant Superintendents on August 16, 1988, some time in July 1993 and forwarded the copy of the deletion of the entry to the Municipal Commissioner on August 12, 1993. Shri Jethmalani submitted that it was not open for the Collector to delete the entry without giving any prior notice and hearing to the appellants and failure to do so has resulted into violation of principles of natural justice. It is impossible to accede to the submission. It does not lie in the mouth of the appellants to claim that principles of natural justice are violated when the appellants have surrepticiously secured entry with the assistance of the Assistant Superintendents. Shri Jethmalani tried to urge that the appellants were not even aware of the entry made by the two Assistant Superintendents and the appellants became aware of it only when the record was produced in the suit instituted by the appellants in City Civil Court at Bombay. We are not prepared to accept the claim of the learned Counsel in view of what has been stated by the appellants in written representation dated September 17, 1993 addressed to the Municipal Commissioner. The written representation recites :

"As far as our clients are aware, even in the property register maintained by the office of the Collector, after and in implementation of the order of 1987, the facts have been duly recorded namely that the aggregate area held by our clients is 3569.30 of which an area of 3217.37 sq. metres pertains to the land shown bounded in the City Survey Plan and designated C.S. No. 565 and remaining area of 339.25 sq. metres is forming part of the said holding towards the southern boundary thereof."

The assertion leaves no manner of doubt that in September 1993, both the appellants and their Advocate Shri Ghelani were fully conscious of the surreptious entry made in the register on August 16, 1988. It is impossible to believe the claim of the appellants that they were not aware as to how the entry was made. The entries in the registers are not made by the Assistant Superintendents on their own but bound to be at the behest of the persons who are interested in such entries. The appellants were obviously interested in such entries and indeed the Deputy Secretary to Government of Maharashtra, Revenue and Forests Department was moved to issue instructions to the Collector to review order passed by consent of the appellants only after the surreptious entry was made in City Survey Register. It surpasses our imagination as to how the appellants who are guilty of serious violation of law and who have manipulated the entries in the register can over claim that the Collector should have given prior notice before cancelling the entry. In case, Shri Jethmalani's contention that the appellants were not aware of the entry is correct, then the appellants can never claim that they should have been given notice before cancellation. In our judgment, the contention about violation of principles of natural justice is without any merit.

Shri Jethmalani referred to the observations made by the Supreme Court in the decision S.L. Kappor v. Jagmohan

and others, to the following effect :

"The principles of natural justice know of no exclusionary rule dependent on whether it would have made any difference if natural justice had been observed. The non-observance of natural justice is itself prejudice to any man and proof of prejudice independently of proof of denial of natural justice is unnecessary. It ill comes from a person who has denied justice that the person who has been denied justice is not prejudiced.

Where on the admitted or indisputable facts only one conclusion is possible and under the law only one penalty is permissible, the Court may not issue its writ to compel the observance of natural justice, not because it is not necessary to observe natural justice but because courts do not issue futile writs. Therefore, merely because facts are admitted or are indisputable it does not follow that natural justice need not be observed."

We do not appreciate how these observations are relevant to the facts and circumstances of the present case save and except observing that devil is trying to quote sidle.

15. That takes us to the grievance of Shri Jethmalani that the order passed by the Municipal Commissioner suffers from serious infirmity. The first contention of the learned Counsel is that the Municipal Commissioner had no jurisdiction to record order because the order proceeds on the basis of the decision of the Collector and which decision is invalid. The submission looses all its merit when the challenge to the order of the Collector stands turned down. The learned Counsel then urged that the Commissioner was guilty of relying upon copy of the Roznama dated August 13, 1993 forwarded by the Collector. It was contended that the Roznama does not amount to an order. We are unable to find any merit in the contention. The Roznama sets out exhaustively what the Collector had decided and this order was passed in the presence of the Officer on Special duty of Bombay Municipal Corporation, the Officer of the Anti Corruption Bureau, appellant No. 2 and his Advocate Shri Ghelani and members of Bombay Environmental Action Group. The claim that the Roznama does not amount to an order is only required to be stated to be rejected. It must be remembered that the Office of the Collector cannot be equated with the proceedings in Court and every one present before the Collector very well understood what the Collector has decided. Shri Jethmalani then submitted that the order of the Collector indicates that the Collector was to write to the Government Pleader to bring fact of non-pendency of the application to the attention of the Division Bench which has issued direction to the Collector and asserted that further steps are not taken. The learned Counsel urged that the Government Pleader did not take any action and, therefore, the Municipal Commissioner was in error in relying upon the order. The submission is devoid of any merit. The appellants and their Advocate Shri Ghelani made desperate efforts by addressing letter to the Government Pleader suggesting that meeting should be held and some formula should be found out to overcome the Collector's order. The appellants have cheek to suggest that Government Pleader should take opinion of senior counsel. The Government Pleader very rightly declined to accede to the mischievous request made on behalf of the appellants and which was made obviously with some motive. We are unable to find how any fault can be found of the Municipal Commissioner for relying upon the order of the Collector. Shri Jethmalani then submitted that the Commissioner could not have proceeded to direct demolition of 7th and 8th floors and part of 6th floor without service of notice under section 351 of the Bombay Municipal Corporation Act. It was contended that the power to direct demolition can be exercised only after notice under section 351 of the Act is served on the offending party. Section 351 of the Bombay Municipal Corporation Act, inter-alia, provides that if the erection of any building or the execution of any such work is commenced contrary to the provisions of the Act, then the Commissioner shall by written notice, require the person to show cause why such building or work shall not be removed. Shri Jethmalani submitted that the Commissioner had not served any such notice on the appellants. The submission cannot be entertained for more than one reason. In the first instance, the Commissioner had indeed served such notice on the appellants on January 30, 1985 after receipt of the report of the Anti Corruption Bureau that the construction of 6th, 7th and 8th floor is in violation of limits of F.S.I. The notice specifically calls upon the appellants to explain why part of 6th, floor and 7th and 8th floors of the building should not be demolished so as to limit the development to the permissible F.S.I. The corporation points out that inspite of repeated efforts, appellant No. 2 avoided to receive the notice. It, therefore, does not lie in the mouth of the appellants to claim that the Municipal Commissioner had not served notice. Secondly, when the Division Bench gave direction to the Commissioner, the appellants made no grievance whatsoever and the directions were specific. The directions were : (a) the Municipal Commissioner to personally examine as to whether the construction exceeds the available F.S.I. and (b) whether any part of the construction is carried out contrary to I.O.D. granted. The Division Bench also directed the Municipal Commissioner to take action in pursuance of the decisions to be recorded. The appellants were fully conscious as to what would be the result of the decision of the Commissioner and at no stage there was any claim that they had no opportunity to explain as to why the offending building should not be demolished. The appellants, in fact, filed detailed written reply dated September 17, 1993 before the Commissioner pointing out all possible reasons for not taking action to pull down the offending portion of the building. It is futile, in these circumstances, to claim that the order of the Commissioner is without jurisdiction in absence of service of notice under section 351 of the Bombay Municipal Corporation Act.

16. Shri Jethmalani then submitted that the Commissioner was guilty of violation of principles of natural justice in as much as the appellants were not given sufficient opportunity of hearing. It was urged that on September 17, 1993, the Law Officer of the Corporation had addressed letter to Shri Ghelani Advocate of the appellants informing that the hearing before the Commissioner is incomplete and it was agreed between the parties that the site will be inspected on September 18, 1993. It is not in dispute that the Commissioner visited the site on September 18, 1993 and appellants declined to remain present. Shri Jethmalani submitted that the statement in the letter that hearing had remained incomplete means that the appellants were not given full opportunity to present their case. The submission has no merit because on September 17, 1993 itself after advancing oral arguments, the appellants through their Advocate filed a detailed written reply. Shri Jethmalani was unable to explain as to why the appellants did not seek for any further hearing after September 18, 1993 until the Commissioner passed order on September 30, 1993. The learned Counsel tried to take assistance from the last paragraph of the written representation which recites that if the Municipal Commissioner has any further or other querry, then the appellants should be given personal hearing to supplement and explain the same. The learned Counsel urged that the appellants were expecting hearing and the Municipal Commissioner was bound to hear the appellants after inspection of the building. In our judgment, the submission is nothing but a desperate effort to avoid adverse order passed by the Commissioner. We refuse to entertain such contentions on behalf of the appellants to hold that principles of natural justice were violated. In our judgment, the Commissioner is not guilty of breach of principles of natural justice and the contention in that behalf is without any substance. Shri Jethmalani also contended that the Municipal Commissioner while directing demolition was influenced by the fact that the occupants of the building had committed acts which amount to breaches of conditions on which I.O.D. was granted. It was contended that the Commissioner was not concerned to ascertain whether breaches of I.O.D. were committed. The submission is not correct because the Division Bench had specifically directed the Commissioner to ascertain whether any part of the construction is carried out contrary to I.O.D. granted. The Commissioner found that after the building was completed, the occupants had altered the portion of the premises and for that, action is required against those occupants. The commissioner points out in the impugned order that although Corporation has started proceedings against those occupants, the aggrieved parties had secured orders from the Court and the action from the Police Authorities is also necessary before the Bombay Municipal Corporation can move in the matter. We are unable to appreciate how the breaches committed by the occupants of the building can have any relevance to the issue as to whether the appellants were guilty of exceeding F.S.I.

17. Shri Jethmalani then submitted that the Municipal Commissioner overlooked that the appellants were claiming to be in possession of area of 339.25 sq. metres towards south of City Survey No. 565. The learned Counsel urged that this area forms part of City Survey No. 438 which is in occupation of Parsi Panchayat but the appellants claim possession of the said area right from year 1981. It was urged that if the appellants are in possession of this area whether legally or illegaly, then the appellants are entitled to take advantage of their possession for claiming additional F.S.I. in respect of plot bearing City Survey No. 565. The submission is entirely incorrect and cannot be accepted. The Commissioner very rightly observed that the Bombay Municipal Corporation while scrutinising proposal submitted by the builder under Section 337 of the Bombay Municipal Corporation Act has to consider whether the builder is entitled to the development to the extent of the plot area. The determination is made by the Bombay Municipal Corporation with reference to P.R. card and City Survey extract. The Bombay Municipal Corporation has to verify whether the builders name is shown on P.R. card or the builder has legal authority to develop the land. The Bombay Municipal Corporation ascertains from the City Survey record as to whether the property on which development is sought is of the ownership of the applicant or the owner has authorised the applicant to develop the same. The appellants secured approval for erection of building by tendering plans in respect of City Survey No. 565 only and it is not in dispute that at that juncture the appellants never claimed that they have any right, title or interest in respect of portion of 339.25 sq. metres out of adjoining City Survey No. 438. The claim that they are in occupation dawned upon the appellants only when Anti Corruption Bureau found that forgery is committed by P.D. Hawal. Shri Jethmalani submitted that on the basis of certificate issued by P.D. Hawal, the Bombay Municipal Corporation permitted amendment of the plans and permitted erection of building upto 8th floor. The appellants cannot take shield behind such permission which was secured by using forged documents and misleading the Bombay Municipal Corporation. Shri Jethmalani submitted that the appellants have trespassed on the land of Parsi Panchayat and are in illegal occupation and claiming hostile and adverse to the interest of Parsi Panchayat right from year 1981 and as Parsi Panchayat had not adopted any legal remedies against the appellants, the title of the appellants to area of 339.25 sq. metres stands crystalised. It is impossible to find any merit in the contention. The title of the alleged trespasser upon the area is not crystalised by merely remaining in occupation. The claim that the appellants had trespassed on the land of Parsi Panchayat is also not established because Parsi Panchayat never admitted that any portion of the area was encroached. Shri Jethmalani referred to the order passed by Division Bench of this Court on petition filed by former Architect of the appellants complaining that the appellants have used forged documents to secure additional F.S.I. The petition was dismissed by learned Single Judge and the appeal before the Division Bench met with the same fate by order dated February 8, 1985. While dismissing the appeal, Division Bench observed that Parsi Panchayat had published notice in the newspaper claiming that none of the area in their occupation is encroached upon. Shri Jethmalani wants to rely upon the observation in the decision of the Division Bench to claim that as Parsi Panchayat is not claiming that the appellants have encroached upon their land, it must be presumed that the land admeasuring 339.25 sq. metres belongs to the appellants. The submission is only required to be stated to be rejected. The Parsi Panchayat is claiming that none of their area is encroached and that cannot lead to the conclusion that the appellants have acquired proprietorship right over area of 339.25. It is not even necessary to point out that mere long possession even if proved can never enable a person to acquire ownership by adverse possession.

18. Shri Jethmalani finally submitted that under the Development Control Rules for Greater Bombay, it was not incumbent upon the Commissioner to direct demolition and in support of the submission, reference was made to Regulation 48 which deals with discretionery powers of the Commissioner. The learned Counsel referred to Regulation 48(b), which, inter-alia, provides that in specific cases where a clearly demonstrable hardship is caused, then the Commissioner may by special written permission permit any of the dimensions prescribed by these rules to be modified. Shri Jethmalani submits that there is clearly demonstrable hardship to the appellants as large amount was involved in constructing the floors. The learned Counsel urged that the Commissioner ought to have granted special permission to permit the increase of F.S.I., even assuming that area of 339.25 sq. metres is not available to the appellants. We are unable to find any merit in the contention because what the Commissioner has been empowered is to permit any of the dimensions prescribed by the rules and the expression `dimension' does not take in its sweep the increase in F.S.I. This Court has already held that the expression `dimension' does not cover the use of excessive F.S.I. Shri Jethmalani then referred to Regulation 64 of the amended regulations which came into force in year 1991. It was urged that Regulation 64 specifically provides that the Municipal Commissioner may permit any of the dimensions prescribed by Regulation to be modified except those relating to F.S.I. and urged that the permission for F.S.I. is specifically excluded in 1991 rules and was available prior to year 1991. The submission is not correct because what 1991 regulation does is to clarify the position which was laid down by this Court. In our judgment, the Municipal Commissioner has no authority to exercise the discretionery power and, in any event, this is not a case where such power should have been exercised. We are unable to find what is the demonstrable hardship to the appellants who has secured advantage by use of forged documents with the connivance of the Officers in the Collector's Office and possibly in the office of Bombay Municipal Corporation. A person who flouts the law and secures bogus entries in the Register can never seek equity from the Court and much less from the writ Court. Shri Jethmalani referred to the decision of Supreme Court M/s. Rajatha Enterprises

v. S.K. Sharma and others, to urge that even if the construction is made in excess of permissible F.S.I., the Commissioner need not have directed demolition. The Supreme Court observed that if actual area is not large and neither public safety is endangered, nor section of public was inconvenienced by reason of construction, then the demolition need not be resorted to. We are not prepared to accede to the submission of the learned Counsel that the Municipal Commissioner in the present case need not have directed demolition. There is a growing tendency amongst the builders to flout each and every regulation framed by the Bombay Municipal Corporation and State Government to regulate the construction in this City. The powerful lobby of the builders are under the impression that office of the Collector and the office of the Bombay Municipal Corporation can be taken for granted and the rules and regulations can be openly flouted by producing forged documents. The manner in which the appellants have constructed the building by flouting every rule and thereafter by manipulating the things to persist with violations makes it clear that the appellants have no respect for rules and regulations and purely out of monetary consideration are willing to bye pass every restriction. It is fortunate that the Collector and the Municipal Commission in the present case have not fallen pray to the tactics of the appellant and have not hesitated to pass orders which are absolutely necessary. We hope and trust that the order passed by the Commissioner would be a lesson to all others who are still under the impression that everyone in this country can be purchased and any construction can be made with a view to earn huge profits. It such actions are permitted, then the day will not be long when the city and its surroundings will stand totally ruined. In our judgment, it does not lie in the mouth of the appellants that illegal construction should not be demolished. We refuse to accede to the desperate pleas made by the appellants that the demolition should be avoided on appellants seeking regularisation by payment of fine. In our judgment, the appellants cannot be permitted to regularise illegalities by offering payment of amounts. In our judgment, the learned Single Judge was perfectly justified in summarily dismissing petition and the appellants are not entitled to any reliefs.

19. Accordingly, appeal fails and is dismissed with costs.

Shri Sahani applies for stay of execution of order of Municipal Commissioner for a duration of six weeks to approach the Supreme Court. Shri Singhvi assures that no action will be taken for a duration of six weeks. The assurance is given on condition that the appellants or any of their directors or occupants of the building will not institute any proceedings in any Court or before any authority to avoid the consequences of the order of Commissioner without giving sufficient prior notice to the Commissioner, Bombay Environmental Action Group and to the State Government. If any such proceedings are instituted in violation of these directions before any authority or before any Court, then such authority or such Court shall vacate any such relief granted as soon as this order is brought to the attention of the Court.