1 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions Court’s or Judge’s orders. and Registrar’s orders. WRIT PETITION NO.: 1282 0F 2010 *** Agricultural Produce Market Committee, Ghansawangi Versus The State of Maharashtra and others *** 1. Heard learned counsel for the parties. 2. Rule, made returnable forthwith, heard finally by consent of the parties. 3. This petition is filed by the original plaintiff in Regular Civil Suit No.422 of 2009. Copy of application for temporary injunction, filed by the plaintiff, in the suit is on record. I am referring this application only for the purpose of understanding the nature of the suit property. In this application, Annexure-B, prayer (A) made by the petitioner/ plaintiff refers subject matter of the suit. It is land Gat NO.692, admeasuring 6 Hectares 22 Ares. Boundaries have been given. Further prayer is made that the defendant be restrained from obstructing the possession of the plaintiff over the suit property. This suit appears to have been filed on 1st December, 2009. Since copy of the plaint is not on record, I have referred to this description given in the application for temporary injunction, copy of which is on 2 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions Court’s or Judge’s orders. and Registrar’s orders. record at Annexure-B. At this stage, counsel for the Petitioner makes available ordinary copy of the plaint. Description, which is given in the copy of the plaint, is mentioned in para 4. It is stated that old Survey No. 295/1 was owned by one Mr. Rangnath Narayan Bobade, resident of Teerthpuri. Survey No. 295/1 and Survey No.295/2 of village Teerthpuri were acquired by the State for public purpose. Disputed property i.e. the suit property is in possession of the petitioner/ plaintiff on lease basis. Accordingly, Panchanama has been effected on 5th October, 1993. Since then the petitioner/ plaintiff Agricultural Produce Market Committee is carrying out various activities. There is a godown, sell hall, office of the Krishi Utpan Bazar Samiti, warehouse, etc. Further statement is made that the owner of Survey No. 295/1 handed over possession of entire property on 5th October, 1993 to petitioner/ plaintiff. According to the plaintiff, from that day, Mr. Rangnath Bobade is not owner of the suit property. Allegation is made that he has relinquished the rights. Ordinary copy of the plaint, which was made available to the Court, was also made available for 3 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions Court’s or Judge’s orders. and Registrar’s orders. inspection, to the learned counsel appearing for the Respondent/ defendant. Said copy is marked by letter "X" for identification and taken on record. 4. Application seeking appointment of Court Commissioner filed by the defendant is on record at Annexure-C. I have seen the prayer made by the defendant. According to the defendant, godown building, sell house building, office of the Krishi Utpan Bazar Samiti, school building and land acquired for Jayakwadi Colony 2 Acres 2 Ares needs to be inspected by the Commissioner and such commissioner be appointed by the Court. 5. In my view, construction activity either within the limits of Gram Panchayat, Municipal Council, or Municipal Corporation concerned - the local authorities, can be carried out with the sanction of such authorities. For such purpose, relevant material can be obtained by the party concerned and produced on record. In substance, appointment of Court Commissioner cannot be sought for. 6. Learned counsel appearing for Respondent/ defendant relied on a judgment of the learned Single Bench of this Court in the matter of "Kashinath S/o Ramkrishna Chopade 4 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions Court’s or Judge’s orders. and Registrar’s orders. V/s Purushottam Tulshiram Tekade and others" reported in 2005 (4) Mh.L.J. 471. It was a second appeal before the learned Single Bench of this Court at Nagpur I have considered the facts obtaining in that case, ratio laid down. Said judgment is not applicable to the facts of the present case. Counsel for the Respondent also relied on a judgment in the matter of "Nikhil Merchant V/s C.B.I. and another" reported in 2008 AIR SCW 7501. There also was an issue of encroachment involved. That was the reason, the Honourable Supreme Court was of the opinion that appointment of Court Commissioner is necessary. Counsel for the Petitioner relied on a judgment of learned Single Bench of this Court in the matter of "Sanjay Namdeo Khandare V/s Sahebrao Kachru Khandare and others" reported on 2001 (2) Mh.L.J. 7. In the case on hand, in my view, order passed by the trial Court needs to be quashed and set aside for the reason that the order impugned is perverse. 8. Writ petition is allowed. Order impugned is quashed and set aside. Application for appointment of Court Commissioner, filed by the respondent/ defendant stands rejected. 5 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions Court’s or Judge’s orders. and Registrar’s orders. 9. It is made clear that the Court concerned shall decide the suit in accordance with the provisions of law and material brought on record. 10. Rule is made absolute in above terms, without any order as to costs. 11. This order is confined only for appointment of Court Commissioner. Commissioner fee, in view of the order passed by the learned trial Court, paid by the Respondent/ defendant, is a fact, pointed out by the learned counsel appearing for the Respondent/ defendant. Since application is rejected, he is permitted to seek withdrawal of said amount from the trial Court by filing appropriate application. Trial Court, on receipt of such an application, shall pass appropriate order thereon. [S.B.DESHMUKH, J.] Dated:25/02/2010. ans/1282