1 mmj IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN ITS CIVIL APPELLATE JURISDICTION WRIT PETITION NO.4697 OF 2009 Shri R.B.Hebbali ..Petitioner Vs. The State of Maharashtra & Ors. ..Respondents Shri M.D.Angal i/b Shri Prakash Mahadik for the Petitioner Shri Balkrishna Joshi for Respondent Nos.2 & 3 Shri A.B.Vagyani, AGP for Respondent No.1 State Coram: P.B.MAJMUDAR AND R.M. SAVANT, JJ. 22nd June, 2010 P.C. 1. This Petition filed under Article 226 of the Constitution of India, takes exception to the order dated 21-10-2008 passed by the Chief Officer of the Respondent Nos.2, Ambernath Municipal Council. The said order has been passed pursuant to the directions, as contained in the order dated 18-12-2007 passed in Writ Petition No.8412 of 2007 filed by the Petitioner. The subject matter of the impugned order is the cancellation of the 2 development permission granted from time to time from the year 1982 in respect of different parts of the lands owned by the Petitioner. 2. It appears that the Petitioner had undertaken the development of Survey No.33/3A, 33/3B and 33/4 wherein the Petitioner is constructing what is known as  Shivshakti Nagar and on Survey No.33/1 and 33/2 the Petitioner is constructing what is known as  Shivalik Nagar . It has been found by the planning authority that the Petitioner has committed a breach of condition Nos.5, 6, 12, 20 & 26 of the development permission and, therefore, the permission granted to the Petitioner was cancelled on 11-5-2004. The gravamen of the allegations against the Petitioner is that the Petitioner has consumed excess FSI than the permissible. The said factual material in that regard is disclosed in the impugned order. It has been mentioned in the impugned order that the area which could be developed was 17299.31 sq.mts, for 3 which the permissible area for construction comes to 12297.48 sq.mts. However, the area covered by completed buildings comes to 14906.47 sq.mts. Thus there is a construction of 1932 sq.mts. in excess in so far as Shivshakti Nagar is concerned. In so far as Shivalik Nagar is concerned it is mentioned in the impugned order that the area covered by building B-3/8, B-3/9 and D-2/1 is not included. However, the area covered by these building is 2547.74 sq.mt. and since the total area sanctioned is 4479.74 sq.mt. The same is in excess of the rules applicable. Therefore, so far as Survey No. No.33/3A, 33/3B and 33/4, it is mentioned that the excess area is 1196.17 sq.mt. and in Survey No.33/1 and 33/2 the excess area is 3283.57 sq.mt. and, therefore, the total excess construction area is 4479.74 sq.mt. 3. On behalf of the Petitioner, it is contended that the FSI in respect of the area covered by the slum, if becomes available and if allowed to be 4 utilised, then the construction put up by the Petitioner would be within the permissible limits. It is also mentioned in the impugned order that an area of 11290.65 sq.mt. is covered by the slum. It is the case of the Petitioner that the Petitioner cannot be deprived of the said area of the slum by the Council; in view of the fact that it was a duty of the Council to take action for demolition in so far as the unauthorised construction in the slums are concerned. The Petitioner finds fault with fact that the Municipal Council has provided the civic amenities to the slum and, therefore, a contention is sought to be raised that the Council cannot take advantage of its own wrong by depriving the Petitioner of the FSI of the land covered by the slum. 4. In so far as the said issue is concerned, it has been mentioned by the Council in its Affidavit that since it is a private property of the Petitioner, it was for the Petitioner to protect 5 the same by taking adequate steps in that respect. Having not done so, the Council cannot be made responsible for the slum having come up in the Petitioner s property. Be that as if may, we would not like to venture into that arena as the same would give rise to disputed questions of fact which we cannot adjudicate in our writ jurisdiction under Article 226 of the Constitution of India. 5. It would also be significant to note that in previous petition filed by the Petitioner the said issue had come up, when this Court had directed by order dated 7-7-2009 that the Petitioner may avail of a proper civil remedy for obtaining relief in that behalf. We once again reiterate the said position and direct the Petitioner to avail of appropriate civil remedy in respect of the encroachment in question. However, in so far as the utilisation of the FSI covered by the slum in question though it is the case of the Respondent No.2 Council that the FSI has already been consumed 6 we express no opinion in that respect. In the event the Petitioner is granted the relief of removal of the slum in the proceedings that the Petitioner would be filing, it would be open for the Petitioner to approach the Respondent No.2 Council to avail of the FSI which would become available on account of the area covered by the slum. However, at this stage, We cannot by a mandatory order direct the Council to permit the Petitioner to utilise the said FSI. 5. We have considered the reasons mentioned in the impugned order. We do not find any infirmity in the said order for this Court to exercise its writ jurisdiction under Article 226 of the Constitution of India. The Writ Petition is accordingly dismissed. 6. However, we make it clear that if the construction put up by the Petitioner is brought within the permissible FSI, the Council would permit the Petitioner to sell the flats in question 7 and register the documents with the registering authority. In the event, the suit is filed by the Petitioner for removal of the encroachment, the contention of the parties in that respect are explicitly kept open for being adjudicated in the said suit. (R.M.SAVANT, J.) (P.B.MAJMUDAR, J.)