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High Court Of Rajasthan
Judgename : K.S. Sidhu
Kalyan - Appellant
Versus
Board of Revenue, Rajasthan, Ajmer - Respondent
Civil Writ Petition No. 434 of 1984
Decided On : 05/15/1984
RASTA DISPUTE - JURISDICTION OF TEHSILDAR - SECTION 251, RAJASTHAN TENANCY ACT, 1955 - SECTION 260, RAJASTHAN LAND REVENUE ACT, 1956 - NOTIFICATION ISSUED BY STATE GOVERNMENT - VALIDITY - SCOPE OF POWERS OF TEHSILDAR - PENDENCY OF SUITS IN CIVIL AND REVENUE COURTS - EFFECT.
Fact of the Case:
Petitioners, cultivators of agricultural land, filed a suit for perpetual injunction to restrain respondent from opening a way through their land. A temporary injunction was granted by the revenue appellate authority and affirmed by the Board of Revenue. Respondent filed a civil suit for a declaration of right of way and a perpetual injunction. The Gram Panchayat dismissed respondent's application under Section 251 of the Rajasthan Tenancy Act, 1955 (Tenancy Act) for removal of obstruction to his enjoyment of the right of way. The Collector set aside the dismissal and remanded the application to the Tehsildar for fresh decision. The Tehsildar allowed the application, directing petitioners to restore respondent's enjoyment of the rasta. Petitioners challenged the Tehsildar's order and the Collector's order remanding the application.
Finding of the Court:
The court held that the Tehsildar had jurisdiction to decide the question of the disputed rasta under Section 251 of the Tenancy Act. The notification issued by the State Government under Section 260 of the Rajasthan Land Revenue Act, 1956 (Revenue Act), purporting to transfer the Tehsildar's powers to the Village Panchayat, was partly ultra vires and severable. The words "in place of Tehsildar" in the notification were deleted, leaving the rest of the notification valid. The Tehsildar's order was passed in the valid exercise of his jurisdiction and power under Section 251 of the Tenancy Act.
Issues: 1. Whether the Tehsildar had jurisdiction to decide the question of the disputed rasta under Section 251 of the Tenancy Act? 2. Whether the notification issued by the State Government under Section 260 of the Revenue Act, purporting to transfer the Tehsildar's powers to the Village Panchayat, was valid? 3. Whether the pendency of suits in civil and revenue courts affected the Tehsildar's jurisdiction under Section 251 of the Tenancy Act?
Ratio Decidendi: 1. The court interpreted Section 251 of the Tenancy Act and Section 260 of the Revenue Act. It held that Section 260 conferred a limited and delegated power on the State Government to authorize a Panchayat to exercise the powers of a Tehsildar under Section 251 of the Tenancy Act, but it did not authorize the State Government to withdraw the statutory powers of the Tehsildar under that section. 2. The court found that the notification issued by the State Government under Section 260 of the Revenue Act, purporting to transfer the Tehsildar's powers to the Village Panchayat, was partly ultra vires and severable. The words "in place of Tehsildar" in the notification were deleted, leaving the rest of the notification valid. 3. The court held that the pendency of suits in civil and revenue courts did not affect the Tehsildar's jurisdiction under Section 251 of the Tenancy Act. The powers conferred on the Tehsildar under Section 251 of the Tenancy Act were independent and could be exercised by him regardless of the pendency of the two suits.
Final Decision: The writ petition was dismissed.
K.S. Sidhu, J.-This is a writ petition under Article 226 of the Constitution. The petitioners are in cultivatory possession as tenants of agricultural land comprised in Khasra number 112, measuring 14 bighas 7 biswa, situate in area of village Harnathpura, Tehsil and District Jaipur. Apprehending the making of a way by force through that land by respondent 4, they filed a suit on Jan. 2, 1978, for perpetual injunction to restrain the said respondent from opening such a way through the petitioners’ land. The said suit is still pending trial in the revenue Court concerned. The petitioners also succeeded in obtaining a temporary injunction in that suit from the revenue appellate authority. The temporary injunction was affirmed by the Board of Revenue, inasmuch as the revision petition filed by respondent 4 against the said injunction was dismissed by the Board on April 20, 1981. Thereafter, on May 21, 1981, respondent 4 also filed a civil suit for a declaration that he has a right of way (rasta) through the land of field number 112 aforementioned and for a perpetual injunction restraining the present petitioners from obstructing him from passing through the said rasta. He also filed an application for temporary injunction, but the same was dismissed by the Civil Judge. His appeal from the order of dismissal of his application for temporary injunction was also dismissed by the Additional District Judge.
2. Thus, the petitioners’ case is that the controversy between the parties regarding the existence or otherwise of a rasta through the land of field number 112 is sub-judice in two different suits, one pending in the revenue Court and the other in the civil Court. During such pendency, respondent 4 filed an application under Section 251, Rajasthan Tenancy Act, 1955 before the Gram Panchayat concerned for an order directing the petitioners to remove obstruction to the respondent’s enjoyment of the right of way and to the restoration of his rasta through the petitioners’ land. By its order, dated, Aug. 7, 1982, the Gram Panchayat dismissed the said application. On appeal by respondent 4, the Collector set aside the said dismissal on April, 5, 1983, and remanded the application under Section 251 of the R. T. Act, 1955 to the Tehsildar, Jaipur, for fresh decision according to law. By his order, dated, Jan. 12, 1984, the Tehsildar allowed the application under Section 251, R.
T. Act, 1955, directing the petitioners to stop their disturbance of the user by respondent 4 of a portion of the petitioners’ land comprised in Khasra number 112 as rasta and to restore respondent 4 to his enjoyment of the said rasta. The petitioners preferred an appeal before the Collector against the order of the Tehsildar. They also challenged the self -same order by way of a petition of revision before the Board of Revenue. After filing the revision, they withdrew from the appeal before the Collector with the result that the said appeal stands dismissed as withdrawn. By its order, dated, Mar. 21, 1984, the Board dismissed the revision.
3. After the dismissal of their revision by the Board of Revenue, the petitioners filed the present writ petition on April 21, 1984, challenging the order of the Tehsildar, dated, Jan. 12, 1984. Incidentally, they are also challenging the earlier order, dated, April 5, 1983, whereby the Collector had remanded the application under Section 251, R. T. Act, 1955 to the Tehsildar instead of the Gram Panchayat.
4. Themain ground on which the order of the Tehsildar dated, Jan. 12, 1984 is challenged is that he had no jurisdiction to decide the question of the disputed rasta at all. It is submitted that the jurisdiction of the Tehsildar under Section 251, R. T. Act, 1955 (hereinafter called the Tenancy Act) to decide disputes as to rasta has been taken away by virtue of a Notification issued by the State Government of Rajasthan in exercise of its powers under Section 260 (1)(b) Rajasthan Land Revenue Act, 1956 (hereinafter cal
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