1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. SECOND APPEAL NO.1057 OF 2004. The Municipal Corporation, Aurangabad, through its Commissioner, ... Appellant. Versus Smt.Phoolabai W/o Sumermal Surana, since deceased through L.Rs. Kanakmal Sumermal Surana and others ... Respondents. ... Mr.S.N.Pagare, advocate for the appellant. Mr.P.F.Patni, advocate for the Respondent No.2. ... CORAM : S.V.GANGAPURWALA,J. Date : 21.10.2010. PER COURT 1. This is original defendant's Second Appeal. The present Respondent Nos.1 and 2 had filed suit for declaration that the notice issued by the Corporation is illegal, null and void and for injunction not to take action pursuant to the 2 said notice. The trial Court decreed the suit. The Municipal Corporation preferred an appeal. The District Court dismissed the appeal and confirmed the judgment and decree passed by the trial Court. 2. Mr.Pagare, learned counsel for the appellant submits that the plaintiffs had violated Development Control Rules and the norms. They have utilised FSI. The permissible FSI is 2, whereas they have utilised FSI 2.25 which is illegal and not permissible. According to Mr.Pagare, the Courts should not have entertained the suit. The relief of declaration and injunction being a discretionary relief, discretion should not have been exercised in favour of the plaintiff who himself is a wrong doer. 3. Per contra, Mr.P.F.Patni, learned counsel for the Respondent submitted that both the Courts have concurrently come to the conclusion that the notice is illegal. The defendant Municipal Corporation could not show 3 the nature of violation. Unless the nature of violation is specified and proved, the impugned notice is not sustainable and the Courts have rightly decreed the suit. 4. With the assistance of the learned counsel for the respective parties, I have gone through the judgments, passed by both the Courts. Regarding violation of FSI, it has been discussed by the Court that the Officer who has stepped into the witness box and also produced the record shows that FSI was calculated at 1.75 when in fact, it was 2. At page 3 of the inspection report, the FSI is treated as 2.25. Even the height of the middle floor is proper. As the defendants could not substantiate the notice, the notice was rightly declared as illegal, null and void. Moreover, the appellate Court has safeguarded the interest of the Corporation also in para 16 of its judgment. 5. Apart from the fact that the impugned notice is not sustainable and the Courts have concurrently held so, there is no case for 4 interference made out. The Second Appeal being sans substantial question of law is dismissed. There is another facet to the case. The Respondent No.2 who is one of the co-owner and plaintiff No.2, against him the appeal itself is dismissed on 16.2.2010 and no steps were taken in that regard. On account of dismissal of the appeal as against Respondent No.2/original plaintiff No.2, the decree can not be reversed only against one plaintiff. In light of that fact also the appeal does not survive. The Second Appeal is dismissed. However, there shall be no order as to costs. (S.V.GANGAPURWALA,J.) asp/office/sa105704 5