IMPORTANT POINT
The Mamlatdar has the power to issue permanent injunction under section 5(2) of the Mamlatdar Courts Act to prevent future obstructions.

JUDGMENT :

1. With consent of learned advocates for the respective parties, the matter is taken up for final hearing. Hence, RULE. Learned AGP Ms. Nirali Sarda waives service of notice of rule for and on behalf of the respondents – State.

2. Heard learned advocate Mr. Hriday Buch for the petitioner, learned advocate Ms. Manavi Dhamle for learned advocate Mr. Maulik Nanavati for Nanavati & Co. for the respondent no. 3 and learned AGP Ms. Sarda for the respondents – State.

3. By way of this petition, the petitioner has challenged the orders dated 26.03.2021 passed by the Deputy Collector, Dhangadhra in Revision Case No. 1 of 2021 and order dated 17.12.2020 passed by the Mamlatdar, Dhangadhra in Mamlatdar Case No. 15 of 2020.

4. The brief facts giving rise to the present petition are stated as under:-

4.1. It is the case of the petitioner that the petitioner is owner and occupier of the land bearing Survey No. 202 (old Survey No. 98) situated at Village: Pratappur (Chandrsar) Taluka: Dhangdhra whereas the respondent no. 3 is the co-owner of the land bearing Survey No. 186 (Old Survey No. 97 paiki 1) situated at the western side of petitioner’s land.

4.2. On 03.07.2020, the respondent no. 3 has instituted suit being Case No. 15 of 2020 against the present petitioner under section 5 of the Mamlatdar Courts Act for removal of erection/break- water at the western portion of the petitioner’s land i.e. Survey No. 202 (Old Survey No. 98).

4.3. According to the case of the petitioner, it was alleged that the petitioner has impeded the flow of the natural water by such erection which has resulted into overflow of water in respondents’ as well as other 100 acres of land adjacent to the land of the respondents.

4.4. Pursuant to the issuance of notice, the present petitioner appeared before the Mamlatdar and raised preliminary objection about non-joinder of party. As according to the petitioner, Sardar Sarovar Narmada Nigam Limited was necessary and proper party to be impleaded in the suit which was not impleaded and in the past it was alleged that the water was overflowing because of improper installation of sub-canal for which representations were also made in the past. However, the aforesaid preliminary objections were overruled vide order dated 19.09.2020 and thereafter, panch rojkam was carried out on 06.11.2020. As per the panch rojkam, it had come out that the said impediment were atleast two years old and therefore, according to the petitioner the suit filed by the respondents was beyond a period of limitation of six months as provided under section 5 of the Mamlatdar Courts Act.

4.5. Thereafter, the suit was proceeded as per the procedure under the Mamlatdar Courts Act and ultimately the Mamlatdar, Dhangadhra vide his order dated 17.12.2020 allowed the suit and restrained the petitioner from creating break-water.

4.6. Being aggrieved by the aforesaid order, the petitioner preferred a Revision Application No, 1 of 2021 before the Deputy Collector, Dhangadhra. However, the said revision application was rejected vide order dated 26.03.2021 and therefore, being aggrieved by both the orders passed by the Mamlatdar, Dhandaghra as well as Deputy Collector, Dhangadhra, the present petition is preferred.

5. Learned advocate Mr. Hriday Buch appearing for the petitioner made following submissions:

5.1. That the Mamlatdar has exercised the powers despite the fact that the limitation provided in the Mamtardar Courts Act is 6 month as it comes out from the panch rojkam that the impediment was created before a period of about 2 years and therefore, the suit was time-barred and despite that the same was entertained and impugned order was passed and even the Deputy Collector also failed to consider the aforesaid aspect and therefore, the Mamlatdar and Deputy Collector both have committed an error in ignoring the vital aspect of delay.

5.2. Learned advocate Mr. Buch further submitted that the aforesaid panchnama which was drawn in presence of the party, though it