Rajasthan High Court - Jodhpur
Premdas vs Mangi Lal on 21 February, 2023
Author: Nupur Bhati
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 (Downloaded on 23/02/2023 at 11:54:23 PM) [2023/RJJD/004929] (2 of 10) [CW-10456/2019] 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 (Downloaded on 23/02/2023 at 11:54:23 PM) [2023/RJJD/004929] (3 of 10) [CW-10456/2019] 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 (Downloaded on 23/02/2023 at 11:54:23 PM) [2023/RJJD/004929] (4 of 10) [CW-10456/2019] 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 (Downloaded on 23/02/2023 at 11:54:23 PM) [2023/RJJD/004929] (5 of 10) [CW-10456/2019] 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) (Downloaded on 23/02/2023 at 11:54:23 PM) [2023/RJJD/004929] (6 of 10) [CW-10456/2019] (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 (Downloaded on 23/02/2023 at 11:54:23 PM) [2023/RJJD/004929] (7 of 10) [CW-10456/2019] 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 (Downloaded on 23/02/2023 at 11:54:23 PM) [2023/RJJD/004929] (8 of 10) [CW-10456/2019] 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 (Downloaded on 23/02/2023 at 11:54:23 PM) [2023/RJJD/004929] (9 of 10) [CW-10456/2019]
(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 Revenue, Ajmer, and therefore do not require any interference even if an alternate way existed, then too it does not preclude the (Downloaded on 23/02/2023 at 11:54:23 PM) [2023/RJJD/004929] (10 of 10) [CW-10456/2019] concerned authorities to re-open the already existing way from the Khasra no. 76 of village-Heerawati, Tehsil-Ladnu. This Court thus finds that the existence of an alternate way in no way affects the right of the respondent under Section 251 of the Rajasthan Tenancy Act, 1955.
13. As an upshot of the above discussion, this Court finds that the present petition is without merit, and is hereby dismissed. Accordingly, the pending stay application also stands dismissed.
(DR.NUPUR BHATI),J 7-Sanjay/-
(Downloaded on 23/02/2023 at 11:54:23 PM) Powered by TCPDF (www.tcpdf.org)