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IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR
NUPUR BHATI, J.
Premdas, S/o. Andadas - Petitioner
Versus
Mangi Lal, S/o. Ramulal and Ors. – Respondents
S.B. Civil Writ Petition No. 10456 Of 2019
Decided On : 21-02-2023
Rajasthan Tenancy Act, 1955 - Section 251, A, (1) (b), (ii), 225, 230 - Restrained from opening agricultural field - Open way going through Khasra from field - Order passed by Revenue Board Ajmer Rajasthan may kindly be quashed and set aside and accordingly respondents may kindly be restrained from opening new way in agricultural field – It is only in absence of alternate means of access, may a tenant be granted way through holding of another khatedaar - Para 6.
Finding of the Court:
Court observes that argument advanced on behalf of petitioner, that Tehsildar vide impugned order erred in reaffirming earlier order, passed by him, is without merit as same cannot be countenanced in light of fact that order is a reasoned and speaking order and which has been passed after giving parties opportunity of hearing - Order passed by learned Board of Revenue, Ajmer, and therefore do not require any interference - Court finds that existence of an alternate way in no way affects right of respondent under Section 251 of Rajasthan Tenancy Act, 1955.
Result: Petition dismissed.
Key Points: - The court held that Section 251 applies when an existing right of way is disturbed, whereas Section 251A applies only to laying new pipelines or opening new ways (!) (!) . - The court found that the petitioner's argument that Section 251A should apply was misconceived because a mauka report established an existing way was already present (!) (!) . - The court ruled that the existence of an alternate way does not affect the right of a respondent to reopen an already existing easementary way under Section 251 (!) (!) . - The impugned orders passed by the Tehsildar, Additional District Collector, and Board of Revenue were dismissed as they were reasoned orders passed after giving parties an opportunity of hearing (!) (!) . - The petitioner's claim to restrain the respondent from opening the way was rejected because the obstruction of an existing path falls under the removal of disturbance provisions (!) (!) . - The court observed that the Tehsildar's order of 07.08.2014 was not a non-speaking order reaffirming a quashed order but a reasoned decision after hearing (!) (!) . - The right of easement is distinct from the availability of alternative access routes, and the latter does not negate the former (!) . - The petition was ultimately dismissed as without merit, and the pending stay application was also dismissed (!) .
JUDGMENT :
1. This Civil Writ Petition has been preferred claiming for the following reliefs:-
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 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 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 pas
SupremeToday
Section 251A are Laying of underground pipeline or opening a new way through another khatedar's holding or enlarging existing way.
The Tehsildar exceeded jurisdiction by acting before the Gram Panchayat's decision, necessitating civil suits for disputed easement claims rather than summary proceedings.
The court clarified that applications for restoring existing easementary rights fall under Section 251, while those for opening new ways fall under Section 251-A of the Rajasthan Tenancy Act, 1955.
The court emphasized the importance of providing the shortest or nearest route as per the law and highlighted the necessity of impleading relevant parties in cases involving way for khatedar tenants.
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