1 wp-9753-10 mmj IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.9753 of 2010 Nilam Maitani/Mahatani & Ors. .. Petitioners Versus M/s. Atharva Buildcon Partnership Firm & Ors. .. Respondents Mr. R.M.Haridas i/b Mr. P. N. Joshi for the Petitioners Mr. M.M.Sathaye for Respondent Nos.1 & 2 Ms Tanya Dayal i/b M/s. J. Shekhar & Co. for the Respondent No.3 CORAM : R.M.SAVANT, J. DATE : 1st DECEMBER, 2011 P.C. : 1 The above Petition takes exception to the order dated 28-10-2010 passed by the Learned Joint Civil Judge, Senior Division, Nasik, by which order, two applications i.e. the application for temporary and mandatory injunction and the application for appointment of Court Commissioner, were rejected. 2 In so far as, temporary injunction is concerned, it appears that the Petitioners had filed Misc Civil Appeal in the District Court and both the Learned Counsel are ad-idem that the said Appeal was allowed and the implementation of the revised plan has been stayed. 3 The challenge in the present petition is, therefore, restricted to the application for appointment of Court Commissioner which has been 2 wp-9753-10 rejected. It is required to be noted that the Petitioners are the flat purchasers from the Respondent No.1 developer and the suit in question is filed for mandatory direction that the Respondent No.1 should not construct anything beyond the sanctioned plan. It was the allegation of the Petitioners in the suit that the Respondent No.1 is carrying out development contrary to the sanctioned plan. It appears that thereafter, the Respondent No.1 had got sanctioned the revised plan and was proceeding to carry out the development in terms of the said revised plan. The Petitioners, therefore, in their application for injunction sought relief qua the revised sanctioned plan as according to the Petitioners the said plan was in breach of Section 7 of the Maharashtra Ownership Flat Act 1970, as the consent of the Petitioners was not obtained in respect of the said sanctioned revised plan, the appointment of the Court Commissioner has been sought on the ground that the Court Commissioner could report as regards the situation on site as it is one of the allegation of the Petitioners that the access for fire brigade has not been kept. 4 As indicated above, both the applications i.e. the application for temporary and mandatory injunction and the application for appointment of Court Commissioner, were heard together. The Trial Court has adverted to the certificate obtained by the Respondent No.1 from the fire brigade as regards the compliance by the Respondent No.1 of the conditions imposed by the said department. In so far as the allegation of the Petitioners that 3 wp-9753-10 the development is not in terms of what was represented to them by the Respondent No.1. In my view, it is for the Petitioners to prove the said assertion by leading appropriate evidence in that behalf. If it is the case of the Petitioners that the Respondent No.1 has not given the facilities which it has promised. The appointment of the Court Commissioner can hardly be the answer to the same. 5 In my view, in the facts and circumstances of the case, the Trial Court has rightly observed that the appointment of the Court Commissioner is not warranted, as it is accepted by the Respondent No.1 that it will carry out the development in terms of the sanctioned plan. In that view of the matter, no case for interdiction is made out. The Writ Petition is accordingly dismissed. (R.M.SAVANT, J.)