WP No. 7244/2008 1 IN THE HIGH COURT AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD WRIT PETITION NO. 7244 OF 2008 Amrut Developers, A partnership business having its Office at 207, Labh Chambers, Opp. M.I.D.C., Railway Station Road, Aurangabad - through its partner Vijay s/o. Ramdas Sakkarwar, ....Petitioner. Versus The State of Maharashtra Through the Secretary, Urban Development Department, Mantralaya, Mumbai & Ors. ....Respondents. Mr. R.N. Dhorde, Advocate for petitioner. Mr. K.G. Patil, A.G.P. for State/respondent No. 1. Mr. S.N. Pagare, Advocate for respondent No. 2 to 6. Mr. C.K. Shinde, Advocate for intervener. CORAM : NARESH H. PATIL & T. V. NALAWADE, JJ. DATED : 22nd September, 2011. ORDER : [ PER T.V. NALAWADE, J. ] 1. The writ petition is filed by a property developer to WP No. 7244/2008 2 challenge the notice issued by Aurangabad Municipal Corporation to pull down illegal construction made by the developer on property bearing C.T.S. No. 19048/1/1 situated at Jalan Nagar, Railway Station Area, Aurangabad. 2. It is the case of the Corporation that the construction is not as per the plan approved, and the petitioner has made excess construction to the extent of 138.54 Sq. Mts. The construction is in excess of the Floor Space Index (F.S.I.). The petitioner applied to Corporation for allowing him to retain the excess construction as per section 44 of Maharashtra Regional and Town Planning Act (M.R.T.P. Act) and he also applied for use of another scheme namely scheme prepared under the Transfer of Development Rules, 2008 framed by the Corporation. The petitioner offered his F.S.I. from other Gat numbers for allowing him to retain the so called excess construction made on the present property. The Corporation rejected the applications and informed that as the property is situated on Paithan Road, the use of T.D.R. Scheme was not permissible. Before getting occupancy certificate, the petitioner has started using the constructed portion. The Corporation has refused to issue occupancy certificate. WP No. 7244/2008 3 3. It appears that the petitioner has sold the flats from the building to various persons and those purchasers have formed housing society by name 'Vaibhav Flat Owners Housing Society'. The Civil application is filed by the flat owners to intervene and they have contended that the developer has made excess construction and the construction is made even in the parking place. They have also requested to Corporation to pull down the excess construction. The contentions made by the petitioner and the argument advanced show that it is not seriously disputed that some construction is not as per the approved plan and there is excess construction than permissible under F.S.I. available to this land. 4. It was submitted on behalf of the petitioner that opportunity of hearing was not given to the petitioner after issuing the show cause notice. The record does not support this contention. All the applications made by the petitioner are considered by the Corporation. The Corporation has informed that the illegal construction, which is also excess than the F.S.I., cannot be regularized as the property is situated on Paithan Road to which T.D.R. Scheme is not applicable. 5. The contentions made in the petition show that the WP No. 7244/2008 4 petition raises disputed questions of facts. In view of the aforesaid circumstances, we are of the view that it is not a fit case where extraordinary writ jurisdiction can be exercised by the Court. The petition stands dismissed. [ T. V. NALAWADE, J.] [ NARESH H. PATIL, J.] ssc/