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.

ORDER :

1. Heard.

2. This appeal is directed against the order dated 31.07.2023 passed by the learned Single Judge whereby the writ petition filed by the appellants has been dismissed, affirming the order passed by the Board of Revenue dismissing the review as also the revisional order arising out of an order passed in the appeal, in the matter of an order passed by the Sub-Divisional Officer in purported exercise of powers under Section 251-A of the Rajasthan Tenancy Act, 1955 (hereinafter referred to as ‘the Act of1955’).

3. Learned counsel for the appellants has made two-fold submissions. The first submission of learned counsel for the appellants is that in the present case, as the application filed by the respondents reads as it is, it was an application based on an allegation that the easementary right on an existing way has been disturbed and the text and tenor of the application was merely to restore the existing easementary right, therefore, such prayer could be examined only by the Tehsildar in proceedings drawn under Section 251 of the Act of 1955. According to learned counsel for the appellants, provisions under Section 251-A of the Act of 1955 would be attracted only in those eventualities where a prayer for opening of a new way is made in which eventuality, a compensation is required to be paid. This legal position was not appreciated by the Sub-Divisional Officer, Board of Revenue and by the learned Single Judge. The application was not maintainable before the Sub-Divisional Officer but it could have been entertained only by the Tehsildar under Section 251 of the Act of 1955.

4. Second submission of learned counsel for the appellants is that this Court, not satisfied with the material on the basis of which the order was passed by the Sub-Divisional Officer, directed a fresh inspection to be carried out and report to be submitted before this Court vide order dated 05.09.2023. Thereafter, a fresh report has now been submitted which clearly depicts that it is not a case of absolute necessity which is sine qua non for invoking power to open a new way under Section 251-A of the Act of 1955. Therefore, in any case, as there was already an existing way, an access to the main road available for the respondents, the application under Section 251-A, even if assuming to be maintainable, was liable to be rejected.

5. Per contra, learned counsel for the respondents would submit that in the present case, the application of the respondent was essentially for opening and recording a new way and it was not a case of restoration of easementary right to use a Kachcha Road. The contents of the application clearly show that the background in which the prayer was made was stated that a Kachcha Rasta was being used as easementary right. However, the prayer was not for restoration of easementary right but for opening and recording a new way coupled with offer of payment of compensation. Therefore, the application was, in substance, one under Section 251-A of the Act of 1955. Moreover, no ground of lack of jurisdiction was raised. He would submit that this issue has been raised for the first time in the writ proceedings and no such objection was raised either before the Sub-Divisional Officer, Appellate Authority or before the Board in revision proceedings.

6. Replying to the second submission of the application, learned counsel for the respondents would submit that the new report which has now been obtained by this Court clearly shows that except the way which was applied by the appellant, there is no other existing recorded way from any other point of opening from the agricultural land of the respondent and, therefore, it cannot be said that there already existed any other recorded way for the respondents to have an access to SH-61 (Jodhpur to Phalodi). Therefore, the new report fortifies the order passed by the Sub- Divisional Officer recording a new way for access to respondents from their agricultural land to the main road.

7. We have hear