Rajasthan High Court - Jodhpur
Haji Khan vs State Of Rajasthan (2026:Rj-Jd:11690) on 6 March, 2026
[2026:RJ-JD:11690] (1 of 11) [CW-18719/2025]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Writ Petition No. 18719/2025
Haji Khan S/o Jaman Khan, Aged About 65 Years, Resident Of
Sindhi Nagar, Kaparda, Tehsil Bilara, District Jodhpur (Raj.).
----Petitioner
Versus
1. State Of Rajasthan, Through Tehsildar Bilara, District
Jodhpur.
2. Suleman Khan S/o Ibu Khan, Resident Of Sindhi Nagar,
Kaparda, Tehsil Bilara, District Jodhpur (Raj.).
----Respondents
For Petitioner(s) : Mr. Manas Ranchhor Khatri
For Respondent(s) : Mr. Sanjay Raj Paliwal, GC
Mr. Kunal Upadhyay
HON'BLE MR. JUSTICE SANJEET PUROHIT
Order 06/03/2026
1. Present writ petition is filed with following prayers:
"A. By an appropriate writ, order or directions, the impugned order dated 19.08.2025 (Annexure-1) issued by the learned Board of Revenue Rajasthan Ajmer in Jodhpur Tenancy Revision NO. 1450/2021 and the order dated 22.02.2021 (Annexure-3) issued by the learned Revenue Appellate Authority Jodhpur in Appeal 2019-00354 RAA Jodhpur, 2019- 018 RTA 225 titled as Suleman Khan vs. Haji Khan & Anr. May kindly be quashed and set aside and the order dated 16.09.2020 (Annexure-7) issued by the learned Sub-Divisional Officer Bilara, District Jodhpur in the Revenue Application NO. 17/2019 may kindly be upheld and maintained.
B. Any other appropriate order or directions, which this Hon'ble Court deems fit and proper, may kindly be passed in favour of the petitioner.
C. Cost of the writ petition may kindly be awarded to the petitioner."
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2. Explaining the facts of the present case, learned counsel for the petitioner stated that the petitioner, who is the khatedar of land Khasra No. 333 (10 Bigha) and Khasra No. 331/4 (18 Bigha 12 Biswa), filed an application under Section 251-A of the Rajasthan Tenancy Act, 1955 ("Act of 1955") seeking permission for a 30-feet access/way through government land (Khasra No.
331) which connects his field with the main road. 2.1 Learned counsel further stated that, since the requested access lay across government land, the SDO, Jodhpur, called for a report from the Tehsildar, Bilara. The Tehsildar recommended granting the access through Khasra No. 331. Relying on a Revenue (Group 6) Department Circular dated 14.06.2013 and the Tehsildar's factual report dated 16.09.2020, the SDO, Jodhpur, allowed the 30-foot way vide order dated 16.09.2020, subject to payment of compensation at double the DLC rate. 2.2 Challenging the SDO's order dated 16.09.2020, Respondent No. 2 preferred an appeal, claiming 40 years' possession over Khasra No. 331 and urging an alternative shorter route through Khasra No. 331/3. The learned Revenue Appellate Authority ("RAA") noted that, though the petitioner sought access over government land, a shorter alternative existed via Respondent No. 2's holding in Khasra No. 331/3.
2.3 While holding that the SDO had failed to consider this viable shorter route, RAA vide order dated 22.02.2021 quashed the order dated 16.09.2020, set it aside, and directed re-initiation of proceedings with impleadment of the khatedar/tenant of Khasra No. 331/3 (Respondent No. 2) for passing fresh orders. Challenging the RAA's order (Uploaded on dated 17/03/202622.02.2021, at 10:29:07 AM) the petitioner filed (Downloaded on 20/03/2026 at 09:00:55 PM) [2026:RJ-JD:11690] (3 of 11) [CW-18719/2025] a revision petition before the Board of Revenue ("BOR"), which was dismissed vide order dated 19.08.2025. 2.4 Aggrieved by the impugned orders, the petitioner instituted this writ petition, assailing their validity on the ground that the authorities erred in remanding the matter to the SDO, Bilara. It is contended that the sought public way traversed government land (Khasra No. 331), rendering Respondent No. 2's objections irrelevant and lacking any basis for appellate consideration. The petitioner's counsel emphasized the Revenue (Group-6) Department Circular dated 14.06.2013, which mandates granting such ways from government land upon payment of double the DLC rate, thereby rendering the SDO's order dated 16.09.2020 wholly justified and impervious to interference. 2.5 Learned counsel further submitted that RAA erred in entertaining Respondent No. 2's appeal for want of locus standi, vitiating the resultant order. The BOR, it is argued, overlooked this critical issue in revision, while both impugned orders suffer from errors apparent on the face of the record, with perverse and legally unsustainable findings.
3. Learned counsel for the State, Mr. S. R. Paliwal, opposed the petitioner's submissions, defending the orders of RAA and BOR as well-reasoned and based on the case's factual matrix and record evidence. He submitted that Section 251-A(1)(b)(i) of the Act of 1955, addresses only absolute necessity for a khatedar-tenant, not mere convenience or preference. Counsel emphasized that the shortest route from the petitioner's land (Khasra No. 333) to the main road lies through Respondent No. 2's khatedari holding (Uploaded on 17/03/2026 at 10:29:07 AM) (Downloaded on 20/03/2026 at 09:00:55 PM) [2026:RJ-JD:11690] (4 of 11) [CW-18719/2025] (Khasra No. 331/3); the SDO's failure to evaluate this alternative justified the appellate remand.
4. Learned counsel for Respondent No. 2, Mr. Kunal Upadhyay, submitted that the petitioner, fully aware of the shortest route to his fields through Khasra No. 331/3 (belonging to Respondent No.
2), deliberately sought a public way over Khasra No. 331 (government land), a longer alternative and willfully omitted impleading Respondent No. 2 in the Section 251-A proceedings under the Act of 1955.
5. Heard learned counsel for the parties and perused the material available on record.
6. The present controversy is narrowly confined to the grant of a way to the petitioner under Section 251-A of the Act of 1955. The said provision is reproduced herein below:
"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
(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(Uploaded three feet beneath on 17/03/2026 the AM) at 10:29:07 surface of the land, (Downloaded on 20/03/2026 at 09:00:55 PM) [2026:RJ-JD:11690] (5 of 11) [CW-18719/2025] 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, acquire any other right in the holding through which such facility is granted."
6.1 A plain reading of this provision shows that a right of way can be granted in favour of a khatedar tenant if there is no other alternate way available for him. Sub Section 1(b)(i) of Section 251-A clearly provides that the right of way cannot be allowed merely on the basis of convenience of a khatedar tenant, and such provision restrains the power of the competent authority for grant of way only for the purpose of providing the shortest available way to the said khatedar tenant.
6.2 This Hon'ble High Court in Bagh Singh v State of Rajasthan; D.B. Civil Special Appeal (Writ) No.11/2016 held that necessity specified in Section 251-A must be 'absolute necessity' and not mere convenience. The relevant paragraph is reproduced herein below:
"As per Section 251 A of the Act of 1955, while granting way it is also required to be kept in mind that it must (Uploaded be a on necessity which is "absolute 17/03/2026 at 10:29:07 AM) (Downloaded on 20/03/2026 at 09:00:55 PM) [2026:RJ-JD:11690] (6 of 11) [CW-18719/2025] necessity" and not for mere convenience. In the instant matter, it is not in dispute that an alternative way is not only available, but is being used by the appellant-petitioner regularly, as such, the claim made is nothing but a convenience and at least not an "absolute necessity"."
6.3 Thus, this aligns seamlessly with the statutory mandate of Section 251-A(1)(b)(i), reinforcing that rights of way are confined to absolute necessity, typically the shortest and nearest route and not grants premised on mere convenience or preference. 6.4 Perusal of the site report, particularly the accompanying map (Annexure-6), reveals that Khasra No. 333 adjoins the main road, amenable to access via Khasra No. 331/3. In contrast, the petitioner's adjoining holding, Khasra No. 331/4, lies farther from the road, necessitating traversal over a substantial portion of government land in Khasra No. 331.
7. Although the petitioner relies on the Revenue (Group-6) Department Circular dated 14.06.2013, which permits ways over government land upon payment of double the DLC rate, the Circular aligns with Section 251-A of the Act of 1955. It sanctions such grants only where the route is the nearest and shortest available. The relevant portion of the said circular is reproduced herein below:
"mDr leL;k ds lek/kku ds fy;s ;g fu.kZ; fy;k x;k gS fd ;fn dksbZ [kkrsnkj viuh tksr rd igawWpus ds fy;s jktdh; Hkwfe esa ls gksdj u;k ekxZ cukuk pkgrk gS ;k fdlh fo|eku ekxZ dks foLrkfjr ;k pkSMk djuk pkgrk gS rks ,sls [kkrsnkj }kjk ,slh lqfo/kk ds fy, vkosnu djus ij mi[k.M vf/kdkjh }kjk tkap djus ij ;g lek/kku gks tk;s fd ekxZ dh vko";drk gS ,oa [kkrsnkj dks mlh tksr rd igwapus ds fy, oSdfYid lk/ku dk vHkko gSA mDr fLFkfr esa jktLFkku LVkEi fu;e 2004 ds mi&fu;e ¼1½ ds [k.M ¼[k½ ds rgr xfBr ftyk Lrjh; lfefr }kjk flQkfj'k dh xbZ Ñf'k Hkwfe njksa dk nqxuk izfrdj fy;k tkdj jkLrk iznr fd;k tkosaA ;g u;k ekxZ y?kqRre ;k fudVre :V ls gksxk rFkk 30 QhV ls vf/kd pkSMk ugha gksxkA jkLrs ds fy, iznRr dh xbZ Hkwfe jktLo vfHkys[kksa esa jkLrs ds :i esa vfHkfyf[kr dh tk;sxh ,oa mDr Hkwfe dk iz;ksx lkoZtfud gksxkA"
7.1 A harmonious reading of Section 251-A of the Act of 1955, along with the Circular dated 14.06.2013 reveals that the (Uploaded on 17/03/2026 at 10:29:07 AM) (Downloaded on 20/03/2026 at 09:00:55 PM) [2026:RJ-JD:11690] (7 of 11) [CW-18719/2025] authority, while exercising powers thereunder, must evaluate all feasible alternative routes to the khatedar's agricultural fields. Only the shortest and nearest way may be sanctioned in favour of such khatedar-tenant.
7.2 This Hon'ble High Court in Kan Nath (Through his LRs) v Board of Revenue & Ors.; S.B. Civil Writ Petition No. 12318/2023 held that if the law provides for shortest or nearest route to be provided, the same shall be complied with. The relevant paragraphs are reproduced herein below:
"12. On appeal, the Revenue Appellate Authority reversed the order passed by the SDO only on the ground that only 1 Biswa land will be used of Khasra No.49 for going to the land of Khasra Nos.54 & 55 and, therefore, there was no need to implead the khatedar tenant of Khasra No.56. In the humble opinion of this Court, the finding recorded by the appellate court and affirmed by the revisional court is not sustainable in the eye of law for the reason that no finding has been recorded by the appellate court as well as by the revisional court with regard to the fact that as to why the way cannot be provided through Khasra No.56 as per the Option No.2 of the Site Inspection Report, which is the shortest possible way. The finding recorded by the appellate court that way through Khasra No.56 cannot be granted is not supported by any reasoning and therefore, the same is liable to be set aside.
13. On the same footing, while affirming the finding recorded by the Revenue Appellate Authority, Pali, the Board of Revenue has also not recorded any finding. In the opinion of this Court, when the law provides for the shortest or nearest route to be provided, then as per the report of the Patwari dated 06.04.2021, since only 15 Biswas land is to be utilized for going to Khasra Nos.54 & 55 through Khasra No.56, then the Option No.2 should have been exercised and if Option No.2 was required to be exercised, then the khatedar tenant of Khasra No.56 was a necessary party in the matter and was required to be impleaded as party respondents by the private respondents."
7.3 Thus, this squarely reinforces that according to Section 251- A, the shortest and nearest route must be prioritized and evaluated before sanctioning any alternative path. This (Uploaded on 17/03/2026 at 10:29:07 AM) (Downloaded on 20/03/2026 at 09:00:55 PM) [2026:RJ-JD:11690] (8 of 11) [CW-18719/2025] underscores that Section 251-A is driven by necessity, not the applicant's choice or convenience.
7.4 A plain reading of the SDO, Bilara's order dated 09.11.2020 reveals that, acting solely on the petitioner's prayer, a report was called only regarding the way over government land (Khasra No.
331). The alternative shortest route through Khasra No. 331/3 was neither considered nor examined.
7.5 In view of such peculiar factual matrix and the statutory intendment of Section 251-A, the SDO's order dated 16.09.2020 was passed without adverting to the availability of the alternative shortest route. The RAA committed no illegality in remanding the matter to the SDO, Bilara, vide order dated 22.02.2021, for fresh consideration in accordance with law, including the feasibility of the route through Khasra No. 331/3.
7.6 The learned RAA has also categorically observed that the pathway sought by the petitioner passes through the middle of the Government land bearing Khasra No. 331. Such a course would render the said Government land less usable. Moreover, the proposed route is not only longer than the right of way available through Khasra No. 331/3, but it would also bisect the Government land, thereby adversely affecting its utility. 7.7 In any case, in view of the mandate of Section 251-A of the Act of 1955, while exercising powers thereunder the competent authorities are required to undertake a comprehensive and comparative assessment of all possible routes and thereafter provide the shortest and most feasible access. In these circumstances, the findings recorded by the learned RAA are fully (Uploaded on 17/03/2026 at 10:29:07 AM) (Downloaded on 20/03/2026 at 09:00:55 PM) [2026:RJ-JD:11690] (9 of 11) [CW-18719/2025] justified. This Court finds no infirmity or error in the reasoning adopted by the said authority and, therefore, the same deserves to be upheld.
7.8 Consequently, the BOR rightly observed that Khasra No. 331/3 lies interposed between the petitioner's holding (Khasra No.
333) and the connecting road, furnishing the shortest and nearest access, a factor that SDO, Bilara was duty-bound to assess under Section 251-A. Consequently, the Board correctly dismissed the review petition, finding no material error of law or fact in the RAA's order dated 22.02.2021, thereby upholding the remand for comprehensive re-evaluation of all viable routes. 7.9 As an upshot of the discussion made hereinabove, it is evident that the provisions contained in Section 251-A of the Act of 1955 are not intended to protect or enforce any vested right of a khatedar. Rather, the provision has been incorporated to address the peculiar situation where a khatedar has no access to his agricultural field. The object and spirit of Section 251-A of the Act of 1955 is to ensure access to such agricultural land by facilitating the shortest possible passage with minimal disturbance to the existing land holdings and revenue records. Therefore, an independent khatedar invoking the provisions of Section 251-A of the Act of 1955 cannot be permitted to impose his own convenience, preference or sweet will in seeking a particular pathway, especially when an alternative and shorter route is otherwise available.
8. During the course of arguments, learned counsel for the petitioner contended that since a passage is available through government land, the sameon ought (Uploaded 17/03/2026to be preferred, at 10:29:07 AM) as providing a (Downloaded on 20/03/2026 at 09:00:55 PM) [2026:RJ-JD:11690] (10 of 11) [CW-18719/2025] right of way through the khatedari land of the private respondents, i.e., from Khasra No. 331/3, may lead to future hindrance or obstruction by them. This contention of the petitioner is wholly baseless and misconceived. Section 251-A of the Act of 1955 clearly provides that once a right of way is created through khatedari land while exercising powers under the said provision, the relevant portion of such land stands recorded as a public way in the revenue record. In such circumstances, although the khatedari rights of the concerned khatedar continue to subsist, the portion earmarked as a public way ceases to remain subject to their exclusive control.
8.1 Consequently, it cannot be presumed that private respondents would create any obstruction or hindrance over a duly recorded public way. Even otherwise, such speculative and misconceived apprehensions cannot constitute a valid ground to defeat the legislative intent and mandate underlying Section 251- A of the Act of 1955.
9. The Hon'ble Apex Court in Estralla Rubber v. Dass Estate (P) Ltd., (2001) 8 SCC 97 held that High Court under its supervisory jurisdiction, exercises very limited interference. The relevant paragraph is reproduced herein below:
"6. The scope and ambit of exercise of power and jurisdiction by a High Court under Article 227 of the Constitution of India is examined and explained in a number of decisions of this Court. The exercise of power under this article involves a duty on the High Court to keep inferior courts and tribunals within the bounds of their authority and to see that they do the duty expected or required of them in a legal manner. The High Court is not vested with any unlimited prerogative to correct all kinds of hardship or wrong decisions made within the limits of the jurisdiction of the subordinate courts or tribunals.
Exercise of this power
(Uploaded and interfering
on 17/03/2026 at 10:29:07 AM)with the orders (Downloaded on 20/03/2026 at 09:00:55 PM) [2026:RJ-JD:11690] (11 of 11) [CW-18719/2025] of the courts or tribunals is restricted to cases of serious dereliction of duty and flagrant violation of fundamental principles of law or justice, where if the High Court does not interfere, a grave injustice remains uncorrected. It is also well settled that the High Court while acting under this article cannot exercise its power as an appellate court or substitute its own judgment in place of that of the subordinate court to correct an error, which is not apparent on the face of the record. The High Court can set aside or ignore the findings of facts of an inferior court or tribunal, if there is no evidence at all to justify or the finding is so perverse, that no reasonable person can possibly come to such a conclusion, which the court or tribunal has come to."
9.1 Thus, petitioner has failed to demonstrate any perversity, illegality, or jurisdictional error warranting this Court's interference.
10. In light of aforesaid reasons and judicial pronouncements, no justifiable ground is made out to interfere with the concurrent findings of learned RAA and learned BOR. In consequence, this writ petition, bereft of merit, stands dismissed.
11. All pending applications, if any, shall stand disposed of.
(SANJEET PUROHIT),J 18-shasikant/-
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