JUDGMENT

Sanjeev Prakash Sharma, J. - The writ petition is preferred against the order passed by the Tehsildar dated 28.02.2014 whereby the Tehsildar has allowed the application moved by the respondents for opening the way through land of the petitioner bearing Khasra No.64 under Section 251 of the Rajasthan Tenancy Act and the order passed by the Board of Revenue in Revision dated 13.09.2017 and the order passed by Board in review application dated 07.05.2018

2. Learned counsel for the petitioner upholding the same submits that the order passed by the Tehsildar was set-aside by a detailed order, taking into consideration all the aspects by the Additional Collector, Sikar vide his order dated 16.11.2016, the Board has wrongly set-aside the order and revived the order passed by the Tehsildar in revision. Learned counsel further submits that the applicant who moves an application under Section 251, has to also prove that there is no alternative way available and for the said reason Section 251A was added in the Rajasthan Tenancy Act. Learned counsel submits that the applicant has not been able to prove that there was no alternative way available to reach their field. Learned counsel also submits that he has taken this plea before the Court but the same has not been considered.

3. Having heard learned counsel, it would be appropriate to quote Section 251 and 251A of the Rajasthan Tenancy Act, which reads as under:-

"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. 251-A. 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

(1) 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 subsection (1),