Ajeet Singh vs The State Of Rajasthan ...
2023 Latest Caselaw 8142 Raj

[2023:RJ-JD:33646]

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Writ Petition No. 10071/2020

1. Ajeet Singh S/o Shri Kishan Singh, Aged About 58 Years, By Caste Kamboj Sikh, Resident Of Dhani Chak 6 Hmh, Tehsil And District Hanumangarh (Raj.).

2. Sandeep Singh S/o Shri Karnail Singh, Aged About 42 Years, By Caste Kamboj Sikh, Resident Of Village Kamrani, Tehsil And District Hanumangarh (Raj.).

----Petitioners Versus

1. The State Of Rajasthan, Through The Tehsildar (Revenue), Hanumangarh (Rajasthan).

2. Wali Mohammad S/o Shri Imamdeen, By Caste Musalman, Resident Of Village Kamrani, Tehsil And District Hanumangarh.

3. Abdul Zabar Khan S/o Haji Suleman Khan, By Caste Musalman, Resident Of Village Kamrani, Tehsil And District Hanumangarh.

                                                                      ----Respondents


For Petitioner(s)               :    Mr. Trilok Singh
For Respondent(s)               :



                HON'BLE DR. JUSTICE NUPUR BHATI

                                          Order

07/10/2023

(1) The present writ petition has been filed under Article

226/227 of the Constitution of India with the following prayers:-

"(a) by an appropriate writ, order or direction, the judgment dated 05.07.2018 (Annexure-P/7) passed by the Board of Revenue, Ajmer, judgment dated 23.10.2013 (Annexure/ P/5) passed by the learned Tehsildar, Hanumangarh, may kindly be quashed and set aside.

(b) by an appropriate writ, order or direction, the matter may kindly be remanded back to the Tehsildar, Hanumangarh for passing a reasoned and speaking

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order after hearing the petitioners on the application moved by the private respondent for opening of the way from the land of the petitioners."

(2) The facts apropos to the case are that the respondent No.2

Wali Mohammed submitted an application (Annex.P/1) before the

District Collector, Hanumangarh for opening the way in his field

situated at Chak 6 HMH, Stone No.160/270 square No.160/270

square No.41, Kila No.1-5, against the present petitioners which

came to be forwarded to the Tehsildar (Revenue), Hanumangarh,

who in turn, called factual report from the Patwari Halka,

Amarpura Thedia with regard to the dispute for the way. The

Patwari submitted his factual report with the dispute of way on

03.06.2013 (Annex.P/2) before the Tehsildar, Hasnumangarh.

(3) The Tehsildar, Hanumangarh thereafter isued an

order/communication dated 04.06.2013 to the Inspector (Land

Records), Hanumangarh and directed him to open the way and

report accordingly.

(4) Being aggrieved of the order dated 04.06.2013 (Annex.P/3),

passed by the Tehsildar, Hanumangarh, the petitioners preferred

an appeal before the learned Additional District Collector,

Hanumangarh, which came to be dismissed vide order dated

23.10.2013 (Annex.P/5). Being aggrieved of the order dated

23.10.2013 (Annex.P/5), the petitioners preferred a revision

petition before the learned Board of Revenue, which too was

dismissed vide judgment dated 05.07.2018 (Annex.P/7).

(5) Hence, being aggrieved of the judgment dated 05.07.2018

(Annex.P/7) passed by the Board of Revenue, Ajmer, order dated

23.10.2013 (Annex.P/5) passed by the Additional District

Collector, Hanumangarh and order dated 04.06.2013 (Annex.P/3),

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passed by the Tehsildar, Hanumangarh, the petitioners prefers the

present writ petition.

(6) Learned counsel for the petitioners made the following

submissions:-

(a) that the Tehsildar, Hanumangarh passed the order dated

04.06.2013 (Annex.P/3) without affording any opportunity of

hearing to the petitioners and thus, violated the principles of

natural justice. The Additional District Collector as well as the

Board of Revenue did not consider this aspect of the matter.

(b) that actual factual report was not brought to the notice of

the Tehsildar, Hanumangarh as there is a residential dhani on the

land and also an electricity transformer is installed for the last so

many years and the Tehsildar, Hanumangarh directed to open the

way without issuing any notice even to the petitioner but also to

the electricity department as there is an electricity transformer on

the land and the Additional District Collector as well as the Board

of Revenue also did not consider this aspect of the matter.

(c) that the jurisdiction to entertain an application under Section

251 of the Rajasthan Tenancy Act lies with the concerned Gram

Panchayat and even if the application was moved before the

Tehsildar, the Tehsildar should have referred the matter to the

concerned Gram Panchayat. Hence, the Tehsildar has exceeded its

jurisdiction while entertaining the application filed by the

respondent no.2 and the Additional District Collector and the

Board of Revenue have also, without application of mind, upheld

the order passed by the Tehsildar and thus, have committed

serious illegality.

[2023:RJ-JD:33646] (4 of 5) [CW-10071/2020]

(7) Heard learned counsel for the petitioner and perused the

material available on record.

(8) This Court finds that the Patwari Halka, Amarpura Thedi, in

his report, clearly mentioned that as per the jamabandi, there is a

recorded way on the disputed land as 0.025 Hectare Gair Mumkin

Rasta, which was closed and on the land of the way, a room has

been constructed and a transformer is also installed. The

Tehsildar, after considering the report of the Patwari, has only

ordered to re-open the said closed way. The Additional District

Collector, in appeal, has observed that the Tehsildar has not

passed any order to open a new way but has only ordered to

reopen the recorded way in the revenue record and the same

cannot be challenged in appeal. The Additional District Collector

also observed that if the petitioners have any grievance against

the recorded way, then the remedy is to move appropriate forum

for cancellation of the said way. The Board of Revenue also, on

the same count, while concurring with the finding of the Additional

District Collector, upheld the same.

(9) It is well settled proposition of law that a concurrent finding

of the fact is binding, unless it is pointed out that it was recorded

de hors the pleadings or it was based on no evidence or based on

misreading of the material on records and documents. In the case

in hand, the Tehsildar has not passed any order to open a new

way and the Additional District Collector and Board of Revenue

have also concurrently observed that no new was opened rather

the sanctioned was, which was closed on the site.

(10) In view of the above, this Court does not find any ground to

interfere with the concurrent findings arrived at by all the

[2023:RJ-JD:33646] (5 of 5) [CW-10071/2020]

authorities below. The writ petition is, therefore, dismissed being

bereft of merit.

(11) The stay application and all other pending applications also

stand dismissed.

(DR. NUPUR BHATI),J 7-skm/-

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