Rajasthan High Court - Jodhpur

Dhanna Ram vs Board Of Rev on 16 May, 2023

Bench: Pushpendra Singh Bhati

[2023/RJJD/015057]

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Writ Petition No. 11268/2022

Dhanna Ram S/o Gula Ram, Aged About 62 Years, Shimbhu Pura, Tehsil Nawa, District Nagaur (Rajasthan).

----Petitioner Versus

1. Board Of Revenue, Through Its Registrar Ajmer (Rajasthan).

2. State Of Rajasthan, Tehsildar, Nawa District Nagaur (Rajasthan).

3. Keshra Ram S/o Shri Sukhdev, Shimbhu Pura, Tehsil Nawa, District Nagaur (Rajasthan).

4. Branch Manager, State Bank Of India, Branch Maroth, Tehsil Nawa, District Nagaur (Rajasthan).

5. Sub Registrar, Tehsil Nawa, District Nagaur (Rajasthan).

                                                                  ----Respondents


For Petitioner(s)         :     Mr. Moti Singh
For Respondent(s)         :     Mr. RD Bhadu, Dy. GC
                                Mr. OP Joshi

HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI

Judgment

Reserved on 11/05/2023 Pronounced on 16/05/2023

1. This writ petition under Articles 226 & 227 of the Constitution

of India has been preferred claiming the following reliefs:

"It is therefore most humbly prayed that this writ petition may kindly be allowed:

a) That by an appropriate writ, order and direction be issued and order/judgment impugned dated 19.07.2022 (Annexure-17) passed by learned Board of Revenue in Revision Petition No.1291/2021/Nagaur titled as "Dhanna Ram vs. Keshra Ram" may kindly be quashed and set aside, the revision petition preferred by the petitioner before the learned Board of Revenue may kindly be allowed

b) That by an appropriate writ, order or direction be issued and order dated 05.02.2021 (Annexure-13) passed by learned Revenue Appellate Authority in Appeal No.188/2020 titled as "Dhanna Ram vs. Keshra Ram" as well as order dated 16.10.2020 (Annexure-7) passed by learned Assistant Collector Nawa in Misc. Case

[2023/RJJD/015057] (2 of 12) [CW-11268/2022]

no.116/2020 titled as "Keshra Ram Vs. Dhanna Ram" may kindly be quashed and set aside the application preferred by the respondent under Section 251A may kindly be dismissed.

c) That the any other relief, which this Hon'ble Court deems fit, by which the petitioner may get full justice may also be allowed."

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

learned counsel for the petitioner, are that the petitioner was

having an agricultural land comprising Khasra No.149 situated at

Village Shimbhu Pura, Tehsil- Nawa, District Nagaur and the

private respondent was also having an agricultural land comprising

Khasra Nos.147 & 148 at Village Shimbhu Pura, Tehsil Nawa,

District Nagaur.

2.1. The private respondent filed an application (registered as

Case No.116/2020) under Section 251-A of the Rajasthan Tenancy

Act, 1955 (hereinafter referred to as 'Act of 1955') before the

Court of learned Sub-Divisional Officer (SDO), Nawa, Nagaur, for

sanctioning of a new way pertaining to the aforementioned

agricultural land of Khasra Nos. 147 and 148 of the private

respondent, from the aforesaid land of the petitioner. Thereupon,

the learned SDO, after hearing the parties and in pursuance of the

factual report so submitted before it, allowed the said application

and sanctioned the new way from the land of the petitioner, vide

the impugned judgment dated 16.10.2020.

2.2. The petitioner, against the aforesaid judgment, filed an

appeal (registered as Appeal no. 188/2020/225/Nawa) against the

aforesaid judgment dated 16.10.2020, before the learned Revenue

Appellate Authority (RAA), Nagaur; the learned RAA passed

[2023/RJJD/015057] (3 of 12) [CW-11268/2022]

interim order dated 22.10.2020, directing the parties to maintain

the status quo, as it existed on that date, in respect of the land in

question, during pendency of the said appeal; the learned RAA

also sought a report from the Tehsildar concerned in respect of the

land in question. Thereafter, the learned RAA, after hearing the

parties and perusing the report of the Tehsildar 21.01.2021,

dismissed the said appeal, vide the impugned judgment dated

05.02.2021.

2.3. The petitioner, against the impugned judgment dated

05.02.2021, preferred a Revision Petition (registered as Revision

Petition No.1291/2021) before the learned Board of Revenue

(BOR) for Rajasthan, at Ajmer under Section 230 read with

Section 221 of the Act of 1955. The learned BOR also passed an

interim order dated 06.04.2021, directing the parties to maintain

status quo in respect of the land in question. Thereafter, the

learned BOR vide the impugned judgment dated 19.07.2022

dismissed the said revision petition preferred by the petitioner.

2.4. Thus being aggrieved by the impugned judgments dated

16.10.2020 passed by the learned SDO; dated 05.02.2021 passed

by the learned RAA and; dated 19.07.2022 passed by the learned

BOR, the petitioner has preferred this writ petition, claiming the

aforequoted reliefs.

3. Learned counsel for the petitioner submitted that the private

respondent was seeking an alternative way from the petitioner's

land, despite availability of an alternative land for the purpose in

question. He further submitted that the learned revenue

authorities below, while passing the impugned judgments, ignored

[2023/RJJD/015057] (4 of 12) [CW-11268/2022]

the fact that the nearest distance was marked as A to C in the

report dated 30.09.2020 submitted by the Patwari concerned.

3.1. Learned counsel further submitted that Section 251-A of the

Act of 1955 clearly imposes the restriction to the effect that if any

person, who has alternate way, cannot seek to obtain another

way; however, the learned revenue authorities below, while

ignoring the said provision of law, passed by the impugned

judgments, which are not sustainable in the eye of law.

3.2. Learned counsel also submitted that the learned revenue

authorities below relied on the survey report dated 21.01.2021

prepared by Tehsildar, Nawa, where against the petitioner raised

the objection, but the learned revenue authorities below, did not

duly examine the validity of that report, before passing the

impugned judgments.

3.3. Learned counsel also submitted that the alternate way is

available from the khasra No.151 and the shortest way was also

available from point A to C as marked by the concerned Inspector,

Land Records. Therefore, as per learned counsel, the new way in

question was not liable to be sanctioned from the land of the

petitioner, more particularly, when the said way was the longest

one.

4. On the other hand, learned counsel appearing on behalf of

the respondents, while opposing the aforesaid submissions made

on behalf of the petitioners, submitted that in compliance of

judgment dated 16.10.2020 passed by the learned RAA, the

private respondent deposited a sum of Rs. 17,150/- in the office of

Tehsildar, Shimbhupura, and after deposition of the said amount,

[2023/RJJD/015057] (5 of 12) [CW-11268/2022]

the aforementioned land has been recorded as Gair Mumkin way

in the Jamabandi. Therefore, as per learned counsel, the writ

petition has become infructuous, and the same deserves to be

dismissed accordingly.

4.1. Learned counsel further submitted that as per the original

Revenue Map, there was no alternative way, as claimed by the

petitioner. Learned counsel also submitted that the petitioner

failed to correctly show the alternative way, rather he tried to

reply upon certain false and fabricated documents. Therefore, the

impugned judgments passed by the learned revenue authorities

below were justified in law.

4.5. In support of such submissions, reliance was placed on the

judgment rendered by the Coordinate of this Hon'ble Court in the

case of Rajaram Vs. Gopal & Ors. (S.B. Civil Writ Petition

No.3194/2016, decided by this Court on 18.01.2022).

5. Heard learned counsel for the parties as well as perused the

record of the case, alongwith the judgment cited at the Bar.

6. This Court observes that the private respondent filed an

application under Section 251-A of the Act of 1955 seeking

sanctioning of the new way from the petitioner's land. The learned

SDO vide the impugned order allowed the said application and

directed to sanction the new way in quetion. Thereafter, the said

determination made by the learned SDO, was upheld by the

learned Revenue Appellant Authority and the learned Board of

Revenue, vide the impugned judgments.

[2023/RJJD/015057] (6 of 12) [CW-11268/2022]

7. At this juncture, it is considered appropriate to reproduce the

relevant provision i.e. Section 251- A of the Act of 1955, as

hereunder:

"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 Sub-Divisional Officer, if he is satisfied after a summary inquiry, that

(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.

(2) Where a right to have a new way or enlarge or widen an existing way is granted under sub-section (1), the tenancy in respect of the land comprising such way shall be deemed to have been extinguished and the land shall be recorded as rasta in the revenue records.

(3) The persons permitted to avail any of the facilities referred to in sub-section (1) shall not, by virtue of the said facility,

[2023/RJJD/015057] (7 of 12) [CW-11268/2022]

acquire any other right in the holding through which such facility is granted.

8. This Court further observes that the necessary ingredients

for sanctioning of a new way under Section 251-A of the Act of

1955, as clearly stated in the said provision of law, are absolute

necessity, and not sought for mere convenient enjoyment and

there is absence of an alternative way; if such ingredients are

satisfied, then only a new way can be sanctioned under that said

Section. Since in the present case, all such conditions are

satisfied, therefore, the claim of the private respondent fell under

the criteria as laid down under Section 251-A of the Act of 1956.

9. This Court is also conscious of the precedent law laid down

by this Hon'ble Court in the case of Ramkunwar Vs State of

Rajasthan (S.B. Civil Writ Petition No. 19125/2018 decided

on 08.12.2021); relevant portion whereof is reproduced as

hereunder:-

"19. Learned counsel for the respondents relied upon the judgment rendered by this Hon'ble Court in Deva Ram & Ors. Vs. Mangu Ram & Ors. (S.B. Civil Writ Petition No.18896/2018, decided on 19.12.2018), relevant portion of which reads as under:

"8. I have considered the rival submissions and perused the material on record.

9. It is to be noticed that as per the provisions of Section 251-A of the Act, a tenant or a group of tenants intended 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 and the matter is not settled by mutual agreement, they may apply such facility to the Sub Divisional Officer concerned. As per mandate of the provisions incorporated as aforesaid, before directing opening of the new way, the SDO has to arrive at the satisfaction after a summary inquiry that the necessity is

[2023/RJJD/015057] (8 of 12) [CW-11268/2022]

absolute and it is not for mere convenient enjoyment of the holding and that absence of alternative means to access, is proved. Suffice it to say that the new way from the agriculture holding of any khatedar cannot be permitted to be opened unless and until the requirements as specified under Section 251-A of the Act, noticed above, are satisfied.

10. Adverting to the facts of the present case, it is a matter of record that no sanctioned way is available to the respondents no. 1 to 8 for access to their holding. The alternative way alleged to be available is in the length of 7 kms. and for using the said way as approach road to their agriculture field, the petitioners are required to travel from village Miyasar to village Chui and then from village Chui to village Hapchar whereas, the new way sought to be opened through inter alia khatedari land of the petitioners herein would be only 2 kms. in length. As a matter of fact, this factual position is not even in dispute. Further, as noticed by the Board of Revenue, on the said way being opened, the distance between the village Hapchar and village Chui and gravel road of village Chui shall stand reduced by 5 kms. and thereby, all the villagers shall be benefited. In the considered opinion of this court, on the facts and in the circumstances of the case, it is difficult to accept the way in the length of 7 kms. available, which passes through two villages, as an alternative way available to the petitioners for access to their agriculture field. In this view of the matter, the concurrent findings arrived at by the revenue courts taking into consideration all the relevant aspects of the matter and the larger interest of the villagers, cannot be said to be capricious or perverse and thus, the order impugned does not warrant any interference by this court in exercise of its supervisory jurisdiction under Article 227 of the Constitution of India."

..........

21. Learned counsel for the respondents further relied upon the judgment rendered by this Hon'ble Court in Gaja Ram & Ors. Vs. Board of Revenue, Ajmer & Ors. (S.B. Civil Writ Petition No.9012/2015, decided on 27.08.2015), relevant portion of which reads as under:

"13. Adverting to the facts of the present case, it is a matter of record that no sanctioned way is available to the respondents no. 4 & 5 for access to their holding. It has come on record that the way passing through the land of the petitioners applied for by the respondent no. 4 & 5 is only in length of 300 ft. whereas, the availability of the alternative way suggested by the petitioners passing

[2023/RJJD/015057] (9 of 12) [CW-11268/2022]

through the land comprising khasra no.1326, 1331 and 1323 is much longer. In this regard, the site maps annexed with the site inspection reports (Annexure 5 &

8), placed on record are self explanatory. It is pertinent to note that for providing the way applied for only 0.05 bighas land of the petitioners is sought to be acquired whereas, the alternative way suggested covers the land measuring 20 biswas i.e. 1 bigha and therefore, taking into consideration the relevant aspects of the matter, the concurrent findings arrived at by the revenue courts, cannot be said to be capricious or perverse so as to warrant interference by this court in exercise of its supervisory jurisdiction under Article 227 of the Constitution of India."

22. After hearing learned counsel for the parties as well as perusing the record of the case, alongwith the precedent laws cited at the Bar, this Court finds that the gair mumkin raasta/way in question has been ordered to be opened by the Sub Divisional Officer vide its order dated 26.07.2016, while exercising powers under Section 251-A of the Act of 1955 by passing a well reasoned and considered order.

23. Though the aforementioned order dated 26.07.2016 was interfered with and quashed by the learned Revenue Appellate Authority vide its order dated 26.10.2016, but the same was restored by the learned Board of Revenue vide order dated 24.08.2018. The review petition seeking review of the said order dated 24.08.2018 was also dismissed by the learned Board of Revenue on 27.11.2018.

24. This Court also finds that the petitioner had enough opportunities before various forums to prove that as per law, the way in question was not required to be opened, as it was not an absolutely necessity, but it is clear from the record that the way in question was an absolute necessity. Though the petitioner has tried to point out another way, but could not prove at any juncture that the said way was functional or was available to the respondent No.4. Merely because some relatives of the respondent No.4 are having adjoining land, the same does not mean that the respondent No.4 was having a lawful way.

25. On a perusal of the maps, site reports and the documents on record, it is clear that the right to way of the respondent No.4 arising out of the absolute necessity has been rightly maintained

[2023/RJJD/015057] (10 of 12) [CW-11268/2022]

by the impugned orders, as per the spirit of Section 251-A of the Act of 1955.

26. This Court further finds that while passing the basic order dated 26.07.2016 in favour of the respondent No.4, the Sub Divisional Officer has taken into consideration the record as well as the ground reports, and nowhere it has been pointed that there was an alternative way available.

27. The precedent laws cited above clearly mandates a right to opening of a new way, in case of summary inquiry by Sub Divisional Officer, as the necessity of way is found to be an absolute necessity, in terms of Section 251-A of the Act of 1955.

28. The necessary ingredients for invocation of Section 251-A of the Act of 1955 to open a gair mumkin raasta are clearly found in the present case. The precedent laws are also reaffirming such statutory position.

29. In view of the above, no case for making any interference is made out.

30. Consequently, the present petition is dismissed. All pending applications stand disposed of."

10. In the present case, the learned revenue authorities below,

ordered for sanctioning of the new way in question under Section

251-A of the Act of 1955 from the aforementioned land of the

petitioner, on basis of the report Patwari, Shimbhupura dated

30.09.2020 and the Tehsildar's report dated 21.01.2021, which

clearly reveal that the private respondent was having an absolute

necessity to approach his land and there was no alternative way

available to him for the purpose in question; therefore, the private

respondent was rightly sanctioned the new way in question, vide

the impugned judgments.

10.1. For ready reference, the relevant portions of the reports

dated 30.09.2020 and 21.01.2021 are reproduced as hereunder:

[2023/RJJD/015057] (11 of 12) [CW-11268/2022]

Report of Patwari concerned dated 30.09.2020:

"QnZ ekSdk

vkt fnukad 30&9&2020 dks Jheku mi[k.M vf/kdkjh egks0 ukoka ds vkns"k dzekad [email protected]@355 fnukad 25&9&2020 dh vuqikyuk esa iVokjh gYdk f"kEHkqiqjk ds lkFk xzke f"kEHkqiqjk ds [k0ua0 147] 148 o 149 ds ekSds ij igqapkA ......

mifLFkr ekSr fojku us crk;k fd utjh uD"ks esa , ls ch rd n"kkZ;s jkLrs dh txg iwoZ esa ixM.Mh Fkh A ftlls [kkrs dh la[;k 147] 148 rd tkrs Fks tks orZeku esa cUn gS A , ls ch rd izLrkfor jkLrk gh lcls mi;qDr gS A blds vykok vU; dksbZ dVk.kh jkLrk izkFkhZ dh Hkwfe ugha yxrk gSA QnZ ekSdk fjiksVZ rS;kj dj mifLFkr ds gLrk{kj djok;s x;sA"

Report of Tehsildar concerned dated 21.01.2021:

"ekSdk QnZ

vkt fnukad 21&1&2021 dks Jheku jktLo vihy vf/kdkjh egksn;] ukxkSj ds vkns"k dzekad [email protected] fnukad 11&01&2021 dh ikyuk esa ekStk xzke f"kEHkqiqjk ds [kljk la[;k 138] 139] 147] 148] 153] [email protected]] [email protected]] [email protected] ij gejkg jktLo Vhe ds lkFk e; jktLo fjdkMZ ekSds ij igqapkA ......

ekStk f"kEHkqijk ds [kljk la0 127] 148 ij vkus&tkus gsrq [kljk la0 [email protected] U;wure yEckbZ dk ,d ek= jkLrk gS tks dVkuh jkLrk [k0ua0 50 ls feyrk gS A mDr [k0ua0 [email protected] jkLrs ds vykok vU; dksbZ oSdfYid jkLrk ugha gS A rFkk utjh uD"kkuqlkj fcUnq vkbZ ls ts rd dk utnhdh jkLrk gS ftlds orZeku [k0ua0 [email protected] gS A i{kdkjku o ekSrfcjku dh mifLFkfr esa ekSdk QnZ rS;kj dj i<dj lqukbZ xbZ ,oa [email protected]{kj djok;s x, A i{kdkj Jh /kUukjke us gLrk{kj djus ls euk fd;k "

11. This Court also observes that the learned SDO passed the

impugned order and the same was upheld by the learned RAA and

[2023/RJJD/015057] (12 of 12) [CW-11268/2022]

the learned Board, and therefore, there are concurrent findings

recorded by three learned revenue authorities below, which are

justified in law, because the same were passed after taking into

due consideration all the material placed on record before them.

12. On a bare perusal of Section 251-A of the Act of 1955 and

the aforementioned precedent law, as also considering the factual

matrix of the present case, this Court does not find any legal

infirmity in the three concurrent determinations made by the

learned authorities below in the impugned judgments, because the