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PRAKASH GUPTA, VINOD KUMAR BHARWANI
Rameshwar Lal – Appellant
Versus
Rajendra Kumar – Respondent
JUDGMENT
1. This special appeal has been filed by the appellants against the order dated 20.1.2021 passed by the learned Single Judge of this Court, whereby the writ petition filed by the appellants has been dismissed.
2. Facts of the case are that on 8.7.2010, the respondents no. 1 to 6 submitted an application before SDO, Chirawa for removal of encroachment from 'Prachalit Rasta? passing through the land belonging to Mandir Mafi in village Dhidhawa, Sub Tehsil Surajgarh, which was marked to Naib Tehsildar, Surajgarh and thereafter to Patwari. The Halka Patwari, Pilani submitted his Mauka Nazri Naksha report. On the basis of the said report, Naib Tehsildar issued notice dated 23.7.2010 to the petitioners and the petitioners were asked to remove the encroachment. Statement of witnesses were recorded and thereafter on 31.8.2010, Naib Tehsildar passed the order directing to open 10 ft. wide road through the land in question. Against the impugned order dated 31.8.2010, the petitioners preferred an appeal before District Collector, Jhunjhunu, which was dismissed vide order dated 3.5.2011. After dismissal of the appeal, the petitioners filed a revision under Section 230 of the Rajasthan T
Section 251 of the Rajasthan Tenancy Act, 1955, applies to obstructions of rights of way, allowing for jurisdictional action by the Tehsildar regardless of whether the way is public or private.
Disputed questions of fact regarding land status cannot be adjudicated in writ petitions under Article 226 of the Constitution.
The legal point established is that the right to a way arising out of absolute necessity under Section 251-A of the Act should be maintained.
Disputed questions of fact regarding land status cannot be resolved under writ jurisdiction, emphasizing the requirement for alternative legal pathways in private disputes.
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.
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