Rajasthan High Court - Jodhpur

Premdas vs Mangi Lal on 21 February, 2023

Bench: Nupur Bhati

[2023/RJJD/004929]

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Writ Petition No. 10456/2019

Premdas S/o Andadas, Aged About 54 Years, By Caste Swami, Resident Of Heerawati, Tehsil Ladnu, District Nagaur.

----Petitioner Versus

1. Mangi Lal S/o Ramulal, By Caste Jat, Resident Of Heerawati, Tehsil Ladnu, District Nagaur.

2. Revenue Board Ajmer, Through Registrar.

3. Additional District Deedwana, District Nagaur.

4. Tehsildar Ladnu, District Nagaur.

                                                                  ----Respondents


For Petitioner             :     Mr. Nitin Prakash Trivedi
For Respondents            :     Mr. R.S. Choudhary
                                 Mr. S.S. Gour



               HON'BLE DR. JUSTICE NUPUR BHATI

                                  Judgment

Reserved on 09/02/2023
Pronounced on 21/02/2023

1. This Civil Writ Petition has been preferred claiming for the

following reliefs:-

"It is, therefore, humbly and respectfully prayed that this writ petition of the petitioner may kindly be allowed:-

1. By an appropriate writ, order or direction the orders dated 07.08.2014 (Annex.7) passed by the Tehisldar Ladnu, order dated 09.04.2015 (Annex.9) passed by Additional District Collector, Deedwana and order dated 02.04.2019 (Annex.11) passed by Revenue Board Ajmer Rajasthan may kindly be quashed and set aside and accordingly the respondents may kindly be restrained from opening the new way in agricultural field of the petition in Khasra No. 76 Village Heerawati Tehsil Ladnu, District Naguar.

2. By an appropriate writ, order or direction, the respondent No.1 may kindly be directed to use the old existing way no

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northern side of Khasra No.64/285 to enter into his agricultural field.

3. Any other appropriate writ, order or direction which this Hon'ble Court may deem just and proper in the facts and circumstances of the case may kindly be passed in favour of the petitioner."

2. This Court vide order dated 25.07.2019 admitted the present

petition after rejecting the stay application. The said order was

challenged before the Hon'ble Division Bench by way of a Special

Appeal (Writ), being D.B. Spl. Appl. Writ No. 1219/2019, and

came to be quashed in light of the fact that the order, dated

04.02.2013, passed by the Additional District Collector, Deedwana

(Nagaur), which formed the basis of consideration in passing the

order dated 25.07.2019, was not placed on the record by the

petitioner. The petitioner has subsequently placed the order dated

04.02.2013 at Annex.-13 of the record, by way of filing of

additional affidavit on 05.01.2020.

3. Brief facts of the case as placed before this Court by the

learned counsel for the petitioner are that the respondent no.1-

Mangilal filed an application under Section 251 of the Rajasthan

Tenancy Act, 1955 seeking relief by way of opening of the way

from Khasra no. 76 of Village-Heerawati, Tehsil-Ladnu, wherein it

was stated that he owned agricultural fields in Khasra no. 380/265

and that the way of his entering into his fields was running

through Khasra no. 76 belonging to the present petitioner; which

came to be obstructed by the petitioner.

3.1 That under such circumstances, the Tehsildar-Ladnu directed

the Land Revenue Inspector-Ladnu to submit a report after

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inspection of the same; whereupon report dated 01.10.2012 (at

Annex-1) was submitted and it was stated therein that an old way

existed through the petitioner's field which was being obstructed

by the petitioner.

3.2 That upon such report, the Tehsildar-Ladnu passed order

dated 23.10.2012 (at Annex-2), whereby the Land Revenue

Inspector-Ladnu and the Patwari of Village-Sunari were directed to

open the way going through Khasra No. 76 from the field of the

petitioner. The said order was challenged by the petitioner before

the Additional District Collector, Deedwana, and the same was

allowed vide order dated 04.02.2013; and the matter was

remanded back to the Tehsildar-Ladnu to decide the same on

merits after according opportunity of hearing to the parties.

3.3 That the Tehsildar-Ladnu passed order dated 07.08.2014 (at

Annex.-7) in consequence of the same. An appeal was preferred

by the petitioner against the said order, under Section 225 of the

Act of 1955, before the Additional District Collector, Deedwana,

which was dismissed vide order dated 09.04.2015 (at Annex.-9).

3.4 That the petitioner then preferred a revision, under Section

230 of the Act of 1955, against the said order before the learned

Board of Revenue, Ajmer, which was also dismissed vide order

dated 02.04.2019 (at Annex.11).

4. Learned counsel further submitted that the order, dated

23.10.2012, passed by the Tehildar-Ladnu was quashed by

Additional District Collector, Deedwana vide order dated

04.02.2013 and the matter was remanded back. And that, the

Tehsildar-Ladnu, in passing the order dated 07.08.2014 has

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gravely erred in reaffirming the earlier order dated 23.10.2012

despite the same being quashed and set aside in accordance with

law.

4.1 Learned counsel also submitted that the order dated

07.08.2014 was passed relying on the mauka report prepared by

the Land Revenue Inspector-Ladnu, which itself was prepared in

the absence of the petitioners, and therefore, deserves to be

quashed and set aside. Further that the said order is a non

speaking order, and that the appellate authority i.e. Additional

District Collector, Deedwana without appreciating the same,

upheld the order. And that the revision against the same,

preferred before the learned Board of Revenue was also

summarily dismissed.

5. On the other hand, learned counsel for the respondents

opposed the submissions made on behalf of the petitioner, and

submitted that the impugned orders have been rightly passed

after taking into due consideration the overall facts and

circumstances of the present case.

5.1 Learned counsel further submitted that the order dated

23.10.2012 passed by the Tehsildar-Ladnu was challenged before

the Additional District Collector, Deedwana and that the same was

allowed vide order dated 04.02.2013; and the matter was

remanded back to the Tehsildar-Ladnu to decide the same on

merits and after according opportunity of hearing to the parties.

And that, the Tehsildar-Ladnu in due compliance, after hearing the

parties passed the order dated 07.08.2014, with the categorical

finding that there in fact did exist a path-way through the

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petitioner's fields located at Khasra No. 76 which was obstructed

and closed and therefore, rightly directed for the same to be re-

opened.

6. Learned counsel for the petitioner drew the attention of this

Court to Section 251A sub-section (1) clause (b) sub-clause (ii) of

the Act of 1955 and submitted that it is only in the absence of

alternate means of access, may a tenant be granted way through

the holding of another khatedaar. And that in the said case, it had

been incorrectly held, merely on the basis of the mauka report

prepared by the Land Revenue Inspector-Ladnu, that such way

through the petitioner's khasra, being khasra no.76, existed

whereas such way never existed, and therefore the proceedings

under Section 251 of the Act of 1955 were bad in the eye of the

law, and that Section 251A, as stated, would apply in the present

case.

7. Learned counsel for the petitioner further drew the attention

of this Court to the following Notification issued by the Revenue

Department;

10. Notification

REVENUE (B) DEPARTMENT

Notification

[1] No. F.6(41) Rev.B/60 dated June 17, 1961 - In exercise of the powers conferred by clause (b) of section 260 of the Rajasthan Land Revenue Act, 1956, (Rajasthan Act No. 15 of 1956), and in supercession of this Department's Notification no. No. F.6(41) Rev.B/60, dated the 17 th June, 1960, the State Government hereby directs that:-

(1) the power conferred on a Tehsildar by sub-section (1) of section 251 of the (Rajasthan Tenancy Act, 1955)

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(Rajasthan Act No.3 of 1955) of the disposing of applications of the holder of land disturbed in the actual enjoyment of right of way, shall be exercised, in placed of Tehsildar by the village Panchayat of the village in which the land in respect of which the right of way has been disputed in situate; and (2) an appeal against an order passed by a village panchayat, in any case decided under the powers delegated to it by this notification, shall lie to the Collector of the district concerned.

[2] Noti. No. F.5(21) Pev/Gr. 4/80/34 dt.4-9-1982. S.O.88-In exercise of the powers conferred by clause (b) of Section 260 of the Rajasthan Land Revenue Act, 1956 (Rajasthan Act 15 of 1956) and in supersession of Revenue (B) Department Notification No. F.6(11) Rev./(B)/60 dated 17-6-1961, the State Government hereby directs that:-

1. The powers conferred on a Tehsildar by sub-section (1) of Section 251 of the Rajasthan Tenancy Act, 1955 (Rajasthan Act 3 of 1955) for disposing of applications relating to disturbance in the actual enjoyment of a right of way of other easement or right by land holders, shall be exercised by the Village Panchayat of the Village in which the land is situated. The application received by the Tehsildar in this behalf shall be duly entered in a register to be maintained for the disposal of such applications and thereafter, forwarded to the concerned Village Panchayat for disposal. In cases in which the Village Panchayat fails to dispose of an application within 45 days from the date of receipt by it either directly or through the Tehsildar, the Village Panchyat will cases to have any jurisdiction in the matter, and the application will be forwarded to the Tehsidlar having jurisdiction forthwith, who will enquire into and dispose of the application within 30 days of its receipt by him. In cases in which a Village Panchayat does not forward the application immediately after the expiry of 45 days, the

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Tehsildar having jurisdiction shall have power to recall the application from the Village Panchayat and dispose of the same.

8. Heard learned counsel for the parties and perused the record

of the case.

9. At the outset, this Court finds that the principal ground of

the petitioner for assailing the impugned orders, is that an

alternate way exists for the private respondent-Mangilal to access

his fields situtated at Khasra No. 380-265, and that therefore he

ought to be restrained from using the way through khasra no. 76

belonging to the present petitioner. This ground was raised before

the learned Board of Revenue, Ajmer and the same was dealt with

vide impugned order dated 02.04.2019 while dismissing the

revision petition preferred by the petitioner, against the order,

dated 09.04.2015, passed by the Additional Collector.

10. This Court further observes that the argument advanced on

behalf of the petitioner, that Section 251A of the Act of 1955

would in fact apply in the factual matrix of the present case,

instead of Section 251 of the Act of 1955, is misconceived. Section

251A would only apply if a new way is ought through the holding

of another khatedaar's khasra whereas in the present case, the

mauka report, dated 01.10.2012, prepared by the Land Revenue

Inspector-Ladnu at the behest of the Tehsildar-Ladnu reveals that

a way already existed through the khasra of the present petitioner

i.e. that the private respondent-Mangilal. Therefore, Section 251

of the Act of 1955 would apply, as an easementary right was

found to be already existing. Furthermore, the right of easement

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has no nexus with the factum that another/alternate way exists,

and the said fact has been rightly appreciated by the learned

Board of Revenue vide the impugned order dated 02.04.2019.

For the sake of brevity, the said Sections are reproduced

hereunder:-

251. Rights of way and other private easement--

(1) In the event of any holder of land, in actual enjoyment of a right of way or other easement or right, having, without his consent, been disturbed in such enjoyment otherwise than in due course of law, the Tehsildar may, on the application of the holder of land so disturbed and after making a summary inquiry into the fact of such enjoyment and disturbance, order the disturbance to be removed or stopped and the applicant-holder to be restored to such enjoyment, notwithstanding any other title that may be set up before the Tehsildar against such restoration.

(2) No order passed under this section shall debar any person from establishing such right or easement as he may claim by a regular suit in a competent civil court."

251A. Laying of underground pipeline or opening a new way through another khatedar's holding or enlarging the existing way. -

(1) Where -

(a) a tenant intends to lay an underground pipeline through the holding of another khatedar for the purpose of irrigation of his holding; or

(b) a tenant or a group of tenants intend to have a new way, or enlargement or widening of an existing way, through the holding of another khatedar to have access to his holding or, as the case may be, their holdings of and the matter is not settled by mutual agreement, the tenant or the tenants, as the case may be, may apply for such facility to the Sub-Divisional Officer concerned, and the SubDivisional Officer, if he is satisfied after a summary inquiry, that

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(i) the necessity is absolute necessity and it is not for mere convenient enjoyment of holding; and

(ii) particularly in case of a new way through another khatedar's holding, that absence of alternative means of access proved may, be order, allow the applicant, to lay pipeline, at least three feet beneath the surface of the land, along 'the line demarcated or pointed out by the tenant who holds that land, or to have a new way. not wider than thirty feet, through the land on such track as pointed out by the tenant who holds that land, and if no such track is pointed out, through the shortest or nearest route, or to enlarge or widen the existing way, not exceeding up to thirty feet, on payment of such compensation as may be determined by the Sub-Divisional Officer, in the prescribed manner, to the tenant who holds the land through which the right to lay pipeline or have a new way or enlarge or widen an existing way is granted.

11. This Court also observes that the argument advanced on

behalf of the petitioner, that the Tehsildar-Ladnu vide impugned

order, dated 07.08.2014, erred in reaffirming the earlier order,

dated 23.10.2012, passed by him, is without merit as the same

cannot be countenanced in the light of the fact that order dated

07.08.2014 is a reasoned and speaking order and which has been

passed after giving the parties opportunity of hearing.

12. This Court thus observes that there is no legal infirmity in

the impugned orders; being order dated 07.08.2014 (Annex.7)

passed by the Tehsildar-Ladnu, order dated 09.04.2015 (Annex.9)

passed by the Additional District Collector, Deedwana and order

dated 02.04.2019 (Annex.11) passed by the learned Board of