Research › Browse › Judgment

Rajasthan High Court · body

1964 DIGILAW 169 (RAJ)

Vijeram v. Onkar

1964-08-30

G.B.K.HOOJA

body1964
By this order it is proposed to dispose of the above mentioned two revision petitions against the orders of the Additional Collector, Udaipur, dated the 7th June, 1963 in appeals Nos. 62/63 and 64/64 filed against the orders of the Panchayat Amarpura dated the 16th January, 1962, as they relate to the same cause of action and involve the same legal points. These petitions arise from the following facts— An application was filed by the non-petitioner, Onkar etc. before the Panchayat to the effect that considerable damage was being caused to their farms by the obstruction created by the petitioner in the traditional drain which syphoned off surplus rain water from the neighbourhood. Similarly, another petition was filed by Magandas etc. that the way leading to their well and the farms had been obstructed by the action of the petitioner who had plugged the traditional drain which was meant to drain off the surplus rain water. The panchayat heard both the parties and inspected the spot. The patwari was also examined and was asked to produce a copy of the settlement map. The Panchayat held that the action of the petitioner had caused disturbance in the enjoyment of the easement available to the non-petitioners without their consent and, therefore, ordered the petitioner to remove the cause of disturbance, and also imposed penalties, by way of fine in both the cases, on him. Aggrieved by these orders, the petitioner filed appeals before the Additional Collector, Udaipur, who upheld the orders of the panchayat with regard to the removal of the cause of distru-bance, but quashed their orders relating to fines as ultra vires of sec. 251 of the Rajasthan Tenancy Act. By the present revision petitions, it is sought to assail the orders of the Additional Collector. It has been argued before me that the cases are not attracted by sec. 251 of the Rajasthan Tenancy Act as under this section, only a holder of land in actual enjoyment of a right of way or other easement or right could move the machinery of law. It has been argued that since the drain and the way are public easements and the non-petitioners cannot be termed to be their land holders, they are not entitled to claim any easement in respect thereof. It has been argued that since the drain and the way are public easements and the non-petitioners cannot be termed to be their land holders, they are not entitled to claim any easement in respect thereof. It has been further argued that the Panchayat has in any case no jurisdiction in the matter, as at the worst, the petitioner has committed a nuisance which can be abated by recourse to civil or criminal courts. It was argued that if the drain had been meant, for irrigation, the matter could fall within the orbit of easement, as mentioned in sec. 251 of the Rajasthan Tenancy Act. Similarly, it was alleged that the road did not lead to the farm of the non-petitioners, and they could not, therefore, claim the protection of this section. It was averred that the Collector had not applied his mind to the case, and that his judgments were erroneous. In reply, the non-petitioners stated that the action of the petitioner had disturbed their easements and caused damage to their fields. The way in question led to the well of the non-petitioners, and if it was overflooded with water the traffic to and for the wall, was obstructed and the cattle were greatly inconvenienced. It was also averred that this drain exists in the Settlement Records as well. The contention of the non-petitioners is supported by the weight of evidence recorded by the Panchayat and the map produced by the Patwari. The arguments advanced by the learned counsel for the petitioner have no substance, as a bare reading of sec. 251 of the Rajasthan Tenancy Act would show. In India, a tenant holds a customary right to have access to his fields for agricultural purposes and sec. 251 of the Rajasthan Tenancy Act has been provided to protect the enjoyment of a right of way or other customary easement, in the event of its being assailed by any party. It does not appear to be the intention of the legislature to restrict its operation only to those lands which are in the possession of the applicant. As it stands, the section extends to all easements or rights, and whenever the enjoyment of such a right is actually disturbed, the provisions of this section would come into play. It does not appear to be the intention of the legislature to restrict its operation only to those lands which are in the possession of the applicant. As it stands, the section extends to all easements or rights, and whenever the enjoyment of such a right is actually disturbed, the provisions of this section would come into play. I, therefore, see no reason to interfere with the impugned orders of the Additional Collector and hold that the drain should be maintained in accordance with the Settlement Records. The revision petitions are, accordingly, hereby rejected.