Bombay High Court
Shri Rambhau S/O Vaijappa ... vs Dnyaneshwar S/O Dadaji Bhusari ... on 1 April, 2016
Bench: S.B. Shukre
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
WRIT PETITION No.5792 OF 2014
Shri Rambhau s/o. Vaijappa Vishwekar,
Aged about 75 years,
Occupation : Retired,
Resident of Ward No.4, Bazaar Road,
Near ST Bus Stand, Bhiwapur,
Tahsil Bhiwapur, District Nagpur.
(dead), through its legal representatives :
Legal heirs of
petitioner brought on
(1) Smt. Pushpa wd/o. Rambhau
Vishwekar, Aged about 68 years,
record as per Court's
Occupation : House wife,
order dt.1.9.2015.
Resident of Bazaar Road,
Tahsil Bhiwapur & District Nagpur.
(2) Sau. Aruna w/o. Shashikiran Kapse,
Aged about 48 years,
Occupation : Housewife, Service,
Resident of Paradsinga, Tahsil Saunsar,
District Chindwara, M.P.
(3) Smt. Aarti wd/o Mahesh Shete,
Aged about 45 years,
Occupation : Service,
Resident of Durga Chowk,
C/o. Khandesh Dairy,
Prasad Apartments, Akola.
(4) Shri Abhay s/o. Rambhau Vishwekar,
Aged about 42 years,
Occupation : Business,
Resident of Bazaar Road,
Tahsil Bhiwapur & District Nagpur.
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(5) Shri Atul s/o. Rambhau Vishwekar,
Aged about 40 years,
Resident of Bazaar Road, Bhiwapur,
Tahsil Bhiwapur & District Nagpur,
The applicants Nos.1 to 3 are represented
by their duly constituted power of attorney
holder Shri Atul Rambhau Vishwekar. : PETITIONERS
...VERSUS...
1. Dnyaneshwar s/o. Dadaji Bhusari,
Aged about 66 years,
Occupation : Agriculturist,
Resident of Wakarla Post Shankarpur,
Tahsil Chimur, District Chandrapur.
2. Shri Shrimant Raje Tejsinghrao s/o.
Vyankatrao Gujar (since deceased,
Respondent No.2(a)
through his legal heirs)
deleted as per Court's (a) Smt. Satyasheeladevi wd/o.
order dt.1.9.2015. Tejsinghrao Gujar,
Aged about 90 years.
(b) Smt. Pratibharaje wd/o. Late
Shri Pratapkumar Mane,
Aged about 71 years.
Both residents of Gujarwada,
Tulshibagh Road, Mahal, Nagpur,
Tahsil & District Nagpur.
3. Taluka Inspector of land Records,
Bhiwapur, Tahsil, Bhiwapur,
Distt. Nagpur. : RESPONDENTS
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Mr. A.S. Kulkarni, Advocate for the Petitioners.
Mr. J.A. Anthony, Advocate for the Respondent No.2(b).
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CORAM : S.B. SHUKRE, J.
st
DATE : 1
APRIL, 2016.
ORAL JUDGMENT :
1. Rule. Rule made returnable forthwith. Heard
finally by consent of learned Counsel appearing for the parties.
2. The grievance is that although, on the application made
by the petitioner, by the order passed on 1st January, 2014, the
learned Civil Judge, Junior Division, Bhiwapur, appointed T.I.L.R.
Bhiwapur as the Court Commissioner to take the measurement of
the entire Shivaji Lay out, Bhiwapur, the amount of expenses,
which are thought to be reasonable by the trial Court, as required
under Rule 15 Order 26 of the C.P.C. has not been fixed by the trial
Court. Learned counsel for the petitioners submits that even
though an application in that regard was made, same was rejected
by the trial Court holding that the petitioner is bound to pay the
Commissioner's fee as per the rules prescribed by the competent
authority.
3. The rules prescribing the fees for such measurement
indicate that the petitioners would have to bear total amount of
Rs.2,32,500/-. The petitioner has also received a letter from the
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T.I.L.R. Bhiwapur calling upon him to deposit this amount. Learned
counsel for the petitioners submits that the amount asked for by the
T.I.L.R. is unreasonable, exorbitant and beyond the financial
capacity of the petitioners. He submits that what is applicable to
private measurement cannot be applied to the measurement
directed on a Court Commission.
4. Learned A.G.P. for the respondent No.3 submits that the
relevant rules providing for fees to be levied in such matters by the
T.I.L.R. do not make any distinction between the private
measurement and measurement at the instance of the Court and,
therefore, no interference with the impugned order is warranted.
Learned counsel for the respondent No.1 submits that no illegality
or arbitrariness can be found in the impugned order dated
16.7.2014 as the relevant rules do not make any exception for
meeting the contingency as advocated in the present case by the
petitioners.
5. Upon going through the impugned order as well as the
copy of the relevant rules (Annexure R3A), I find that the impugned
order cannot be seen as illegal or arbitrary. The relevant rules do
not make any distinction, as rightly submitted by the learned
A.G.P., between private measurement and the Court directed
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measurement. Whatever rules are there, every party seeking to
draw benefit from the rules would have to abide by the rules. No
doubt, under Rule 15 of Order 26 of the C.P.C. a power has been
given to the Court to fix expenses of the Court Commissioner,
which are thought to be reasonable by the trial Court, the concept
of reasonableness envisaged in this rule cannot over step the limits
prescribed under the applicable rules. Ultimately, the rules have
the force of law and if the rules provide for certain amounts to be
paid as fees for carrying out necessary measurements, Court cannot,
in its wisdom, sit in appeal over the rules and adjudicate upon their
reasonableness. If the Court were to embark upon such an exercise,
it would amount to taking a policy decision, which is not
permissible under the law.
6. Thus, I find no substance in this writ petition. The
impugned order cannot be seen as illegal or arbitrary and warrants
no interference.
7. Writ petition stands dismissed. Rule is discharged.
JUDGE
okMksns
