1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 1372 OF 2010 PANKAJ SUBHASH PATIL V/S DILIP GANGADHAR MAHANUBHAV AND ANR ... Shri L.V. Sangit Advocate h/f Smt. M.L.Sangit, Advocate for the petitioner. ... CORAM : S.B.DESHMUKH,J. Dated : 8.3.2010 PER COURT :- 1. Heard. 2. Petitioner is defendant No.1 in Regular Civil Suit No.25 of 2008 pending in the court of learned Civil Judge J.D. Chopda, District Jalgaon. It was filed on 25.3.2008 seeking decree for perpetual injunction against defendant No.1 from encroaching and constructing on the public road. During pendency of the suit, amendment was sought seeking a mandatory injunction for demolition of the construction made by defendant No.1 on the public road. Said amendment was allowed. Such mandatory injunction was sought against defendant No.1 Gram Panchayat. In the suit, three properties i.e. Gram Panchayat Nos.121/1, 125 and 121 2 are described as suit properties. Their corresponding survey numbers so also areas are given. In paragraph No.2 a statement is made that property described in paragraph No.1-A is owned by defendant No.1. Property 1-B is owned by the plaintiff and property 1-C is owned by Manish Patil and others. In paragraph No.3, a statement is made that the plaintiff is occupying his own property. However, residents of village are also occupying and using their own properties. The public road is being used by more than 100 years. Direction and location of the said road in letter "L" shape is detailed in paragraph No.3. 3. Respondent No.1 / plaintiff filed an application Exhibit 73 seeking appointment of the Court Commissioner. This application is at Exhibit 80. It was filed on 27.8.2009. By this application, appointment of Taluka Inspector of Land Records, Chopda, is sought as a Commissioner 4. The trial Court called upon the defendants to file their reply to the application filed by the plaintiff seeking appointment of the Court Commissioner. Reply filed by defendants is on record at Exhibit 80. In paragraph No.5 of the said reply, it has been pointed out that the plaintiff is trying to collect the evidence with the aid of the Court Commissioner, which is not permissible. Plaintiff has to adduce evidence and seek the decree. It is further contended in paragraph No.5 that earlier also, the plaintiff had filed an application (Exhibit 34) seeking appointment of the 3 Court Commissioner. Again an application is filed for protracting the hearing of the suit and therefore, it needs to be rejected. The trial Court allowed the application on 29.1.2010. 5. Copy of the plaint (Exhibit "A") of the plaint on record shows that Gram Panchayat Ghodegaon was joined as defendant No.2 after the amendment. This writ petition, however, is filed by defendant No.1 alone and not by the Gram Panchayat. 6. Learned counsel for the petitioner submits that the suit is not in the representative capacity. The owner of the city survey No.400 is not party to the suit. He did not seek injunction. According to the learned counsel for the petitioner, impugned order is illegal and needs to be quashed and set aside. 7. Nature of the suit is significant. Claim of the plaintiff pertains to user of the public road. Gram Panchayat concerned is a local self Government. Experience shows that local self Government sometimes acts swiftly, sometimes slowly and sometimes do not act. I have noticed the nature of the suit being in individual capacity. I have given due consideration to the submissions made. Gram Panchayat in the States are constituted in accordance with the provisions of the Bombay Village Panchayats Act, 1958. Public road in the vicinity of village gram panchayats is the matter well within the knowledge of residents and gram 4 panchayat concerned. Authentic record of the public roads is in the custody of the gram panchayat and competent authorities of the State Government, more specifically, the Survey Department. The grievance that the construction is being initiated and/or intended on public road can be taken care of by appointing Taluka Inspector of Land Records - a competent authority - working in the Survey Department and custodian of the public record. The trial Court has justifiably appointed the Court Commissioner. The petition is devoid of any merits. 8. In the result, Writ Petition stands dismissed. No order as to costs. ( S.B.DESHMUKH, J.) ... akl