[1.0] Present Civil Revision Application under Section 115 of the Code of Civil Procedure, 1908 (hereinafter referred to as “CPC”) has been preferred by the petitioner herein – original defendant No.1 – appellant challenging the impugned order dated 14.07.2010 passed by the Mamlatdar, Vadhwan under Section 5 of the Mamlatdar Court's Act directing the petitioner – original opponent to remove the bund constructed by the petitioner on the boundaries of agricultural field by which it has obstructed the natural water flow from the agricultural fields of the original applicant and to remove the obstruction of the natural flow of the rain water as well as the impugned order dated 14.06.2011 passed by the Deputy Collector, Vadhwan in Mamlatdar Court's Revision Case No.4 of 2010 in dismissing the same and confirming the order dated 14.07.2010 passed by the Mamlatdar, Vadhwan in Mamlatdar Court's Case No.36 of 2010. [2.0] That the respondent Nos.3 and 4 herein – original applicants – owners of the land bearing survey No.393/1 situated at village Madlodh, Vadhwan, District Surendranagar initiated the proceedings under Section 5 of the Mamlatdar Court's Act against the petitioner herein – original opponent No.1 for removing the obstruction in the natural flow of water due to the construction of bunds by the petitioner herein on the boundaries of his agricultural field. That it was the case on behalf of the original applicants that they are the owners of land bearing survey No.391/1 admeasuring about 2.34.71 hectare in which the rain water is flowing in the agricultural field from western direction towards eastern direction passing from survey No.395 ahead of eastern direction. It was the case on behalf of the original applicants that the petitioner herein – original defendant No.1 Vashram Somabhai Patel constructed a bund of about 3 to 4 feet on his agricultural field and thus obstructed the natural water flow and has diverted the water flow towards southern direction in agricultural field having survey No.304 of one Chandrasinh. It was also the case on behalf of the original applicants that said Chandrasinh having agricultural land at survey No.396 has also constructed about 3 feet deep drainage towards the eastern direction and due to the same the natural water flow has been obstructed and is diverted. That the petitioner herein – original defendant No.1 resisted the said application contending that he had not constructed any bund in between any boundaries of the field and the plaintiff and his agricultural fields. It was the case on behalf of the defendant that bund was the natural bund which was already in existence and that defendant No.1 had never made any change in the said bund. That the Mamlatdar inspected the agricultural lands in question and in presence of the witnesses prepared the panchnama and considering the panchnama and inspection made by him as it was found that there was a natural water flow from the agricultural field of survey No.393/1 (original applicants) which was passing towards western direction to the eastern direction of the agricultural field of survey No.395/1 which has been obstructed by the petitioner – original defendant No.1 and the owner of the agricultural field of survey No.395/1 by constructing the bund and by also adding earth to the land and thereby increasing the level of his agricultural field by which the natural flow of agricultural field of survey No.393/1 has been obstructed and therefore, the Mamlatdar, Vadhwan passed an order dated 14.07.2010 in exercise of powers under Section 5 of the Mamlatdar Court's Act directing the petitioner herein – original defendant No.1 Vashrambhai Somabhai Patel to remove the additional earth and consequently to remove the obstruction of the natural water flow.
[2.1] Feeling aggrieved and dissatisfied with the order passed by the Mamlatdar, Vadhwan dated 14.07.2010 in Mamlatdar Court's Case No.36 of 2010, the petitioner herein – original defendant No.1 – owner of the land bearing survey No.395/1 preferred Revision Application before the Deputy Collector, Vadhwan under Section 23(2) of the Mamlatdar Court's Act being Mamlatdar Revision Case No.4 of 2010 and the learned Revisional authority – Deputy Collector has dismissed the said revision application.
[2.2] Feeling aggrieved and dissatisfied with the impugned order passed by both the authorities below passed under Section 5(2) of the Mamlatdar Court's Act confirmed by the Revisional Authority, the petitioner herein – original defendant No.1 – owner of the land bearing survey No.395/1 has preferred the present Civil Revision Application under Section 115 of the CPC.
[3.0] Shri Asim Pandya, learned advocate appearing on behalf of the petitioner – original defendant No.1 has vehemently submitted that both the authorities below have materially erred in passing under Section 5 of the Mamlatdar Court's Act directing the petitioner to remove the additional earth from his agricultural field and directing the petitioner to remove the obstruction in natural flow of water from the agricultural field of the original applicants.
[3.1] It is submitted that as such the order passed by the Mamlatdar is without following any procedure as required under Section 19(1) and 19(2) of Mamlatdar Court's Act. It is submitted that as such the spot inspection has not been carried out in presence of the petitioner and therefore, the Mamlatdar ought not to have relied upon the said inspection and/or the panchnama. It is further submitted that as such no bund has been constructed by he petitioner as alleged. It is submitted that infact though it was specific case on behalf of the respondents in the application that the petitioner herein had constructed bund whereby the natural flow of water from his field has been obstructed, however, from the spot inspection the Mamlatdar has found that no such bund has been constructed by the petitioner and still the Mamlatdar has passed the impugned order on altogether a new case/ground that the petitioner has increased the the level of the field by adding earth on it and has accordingly directed the petitioner to level his field by removing the additional earth. Therefore, it is submitted that a such the Mamlatdar has gone beyond the scope of the application in as much as it was never the case of the respondent that applicant has increased the level of his field by adding earth on it and thereby obstructed the natural flow of water from his field.
[4.0] Heard Shri Asim Pandya, learned advocate appearing on behalf of the petitioner – original defendant No.1 and Shri Mihir Bhatt, learned Assistant Government Pleader appearing on behalf of respondent No.1 – Deputy Collector. Shri Satyam Raval, learned advocate who was appearing on behalf of respondent No.3 has withdrawn his appearance. This Court has considered the impugned order passed by both the authorities below. At the outset it is required to be noted that the present proceedings arise out of the order passed by the Mamlatdar, Vadhwan under Section 5 of the Mamlatdar Court's Act with respect to the natural flow of water. From the panchnama prepared by the Mamlatdar which was on the basis of the spot inspection, it appears that natural flow of water which was passing from the land bearing survey No.393/1 from the western direction towards eastern direction passing from survey No.390/1 of the petitioner towards ahead to the eastern direction has been obstructed and it appears that because of the construction of the bund and/or by putting additional earth, height/level of the land survey No.395/1 has been increased due to which the natural flow of water from the land bearing survey No.394/1 through the land bearing survey No.395/1 has been obstructed. It is the case on behalf of the applicant that as such the Mamlatdar has not followed the procedure as required under Section 19 of the Mamlatdar Court's Act and has done the spot inspection in absence of the petitioner and has prepared the panchnama in his absence and therefore, the order passed by the Mamlatdar is vitiated. However, it is required to be noted that as such the petitioner has never challenged the panchnama before the appellate authority. It was never the case of the petitioner before the appellate authority that the Mamlatdar is not followed the procedure as required under Section 19 of the Mamlatdar Court's Act. Under the circumstances, when the petitioner has not challenged the panchnama prepared by the Mamlatdar in presence of witnesses which was done on the basis of the spot inspection, it is not open for the petitioner to challenge the same now in a revision application under Section 115 of the CPC.
[5.0] Even the contention on behalf of the petitioner that the Mamlatdar has passed the impugned order beyond the scope of the application has no substance. The original applicants approached the Mamlatdar making a grievance with respect to obstruction of natural flow by submitting that as the petitioner has constructed the bund on his boundaries which has obstructed the natural flow of water. However, on inspection it has been found that because of adding earth on his agricultural field, it has increased the level of his field i.e. land bearing survey No.395/1 which has caused the obstruction to the natural flow. Considering the aforesaid fact, it cannot be said that the Mamlatdar has gone beyond the scope of the application. The obstruction of natural flow has been proved and established and consequently the Mamlatdar has passed the order to remove the obstruction by removing the additional earth from the land bearing survey No.395/1 belonging to the petitioner. Under the circumstances, as such no illegality has been committed by the Mamlatdar in passing the order under Section 5 of the Mamlatdar Court's Act directing the petitioner to remove the obstruction in natural flow of water from the land bearing survey No.393/1 through the land bearing survey No.395/1 belonging to the petitioner.
[6.0] Even otherwise as held by the learned Single Judge in the case of Kiritsinh Dharamvirsinh vs. Kalubhai Shardulbhai & Ors. reported in 2006(3) GCD 2031, in exercise of powers under Section 115 of the CPC, this Court is not required to interfere with the order passed by the Deputy Collector. Ultimately, the parties can always resort to civil proceedings for getting their rights declared by filing appropriate suit. It is further observed and held that so far as the proceedings under the Mamlatdar Court's Act is concerned, it is a summary proceeding in nature. Therefore, it will always be open for either of the party/aggrieved party to resort to civil proceedings for getting their rights declared by filing appropriate civil suit.
[7.0] In view of the above and for the reasons stated above, present Civil Revision Application fails and the same deserves to be dismissed and is, accordingly, dismissed. Rule discharged. Ad interim relief, if any, stands vacated forthwith. No costs.
(M.R. Shah, J.) menon