PEDRO GOMES VIEGAS Vs. URMILA LAXMAN NARVEKAR

JUDGEMENT

(1.) THE respondent no.1 (hereinafter respondent) initiated proceedings before the Mamlatdar of Bardez Taluka , for registration as mundkar under Section 29 (4) of the Goa , Daman and Diu (Protection From Eviction) Act, 1975 (hereafter referred to as "the Mundkar Act"). In those proceedings a compromise was entered into between the parties and the Mamlatdar disposed of those proceedings on that basis by passing the Order dated 11th June, 1990. In the said compromise it was agreed that this petitioner shall sell the mundkarial house to the respondent. However, this did not materialize. Thereafter the petitioner constructed a compound wall along the northern side and part of the western side of the suit house thereby blocking the only access from the back door of the respondent for going to the well for fetching drinking water from the well. This led the respondent to file an application for declaration of his right as a mundkar under Section 8A of the Mundkar Act and also claiming injunction. The respondent also sought interim mandatory injunction directing the petitioner to remove the said blockade caused to the access of the respondent to the well. The Mamlatdar inspected the said site and also made a report that the access of the respondent to the said well had been blocked by constructing the said wall and hence, the respondent is not able to have drinking water from the said well. Therefore, the interim mandatory injunction came to be granted by him on 21st May, 1993. The petitioner challenged the said order by filing an appeal (though titled as a revision). The said appeal filed by the petitioner came to be dismissed by the Additional Collector, Panaji , by Order dated 5th October, 1995. This Order came to the challenged before the Administrative Tribunal, Goa , by filing a revision and the revision also came to be dismissed on 11th February, 1999. Thus all the three authorities below accepted the case of the respondent that his way to the drinking water well has been blocked by the petitioner by constructing the said compound wall and hence he was directed to remove the said blockade. This Order dated 11th February, 1999 passed by the Administrative Tribunal is under challenge in this petition.

(2.) THE learned advocate for the petitioner submitted that such an order of interim mandatory injunction could not have been passed under the provisions of the Mundkar Act. She invited my attention to Section 5 (1), (2) and (3) of the Mundkar Act. They read as under :

(3.) IT is also clear from Section 6 of the Mundkar Act that the mundkar is having right to enjoy supply of electric power or water or any customary easement etc. and if there is any threat to it, then injunction can be granted preventing the disturbance thereof. It can be granted by the Mamlatdar after making the enquiry as contemplated by Section 6 (2). The learned advocate for the petitioner next submitted that it is only possible for the Mamlatdar to grant such a mandatory injunction after holding the necessary enquiry as contemplated by Section 6 (2) of the Mundkar Act and she also invited my attention to Rules 14 (7), 15 and 16 of the Goa , Daman and Diu Mundkars (Protection From Eviction) Rules, 1977. I have gone through them. They prescribe the method of holding enquiry. Further, Section 6 (3) of the Mundkar Act speaks about granting of temporary injunction and this could be granted by the Mamlatdar on the basis of the affidavits or otherwise. Thus he can also grant a temporary injunction so as to prevent a bhatkar from disturbing mundkar's right. It is contended that Section 6 (3) only speaks about prevention of contravention and not where already the contravention is committed. It is not possible to accept this contention. The disturbance of right is continuous and in the present case by putting a wall or blockade, the access of the respondent to the drinking water well is blocked and the said facility of having drinking water is cut off. It is continuous. Therefore, I find that there is nothing wrong in granting such interim mandatory injunction. It is not necessary to wait till completion of enquiry in such cases.