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2005 DIGILAW 1526 (RAJ)

Uda Ram v. Dana Ram

2005-05-23

DINESH MAHESHWARI, RAJESH BALIA

body2005
Judgment Rajesh Balia, J.-We have heard the learned Counsel for the appellant as well as learned Counsel for State. None has appeared for respondent No.1 in spite of service. 2. The facts relevant to this appeal are that the appellant Uda Ram had applied before the Sub Divisional Magistrate, Hanumangarh, a statutory authority under the Rajasthan Irrigation and Drainage Act, 1954 for providing him access to his fields in Chuck No. 3 RTP admeasuring 18 bighas of land for which there was no sanction of the State Government. 3. The applicant has given three suggestions for providing him access to his fields. The alternatives No. 1 and 2 were for providing a way through adjoining private lands of different khatedars, whereas third alternative was to provide way through a Government land in which the water course which has fallen in disuse was situated. 4. The Tehsildar, Sangaria recommended for providing right of way to the applicant through the third alternative which was the Government land and through which a Khala was entered as Gair Mumkin Khala. Dana Ram and Srikrishan filed objections and their contention was that since first choice was given by the applicant to have a right of way through stone No. 188/183, therefore, there was no justification for providing the applicant the way through Kila No. 15 of stone No. 187/184. 5. The SDM overruled that objection finding that alternatives No. 1 and 2 were through private lands and holders of the land were not prepared to part with the land even on payment of compensation whereas there can be no objection for providing way through the Government land where according to the report of the Assistant Engineer (Irrigation), the Khala was not in use. The SDM was of the opinion that there would be no dispute about providing way through the Government land, in which case, there will be no occasion for determining compensation and payment of compensation. He also opined that by providing a way, the possibility of the land in question being encroached will also be reduced. Thus, he ordered providing access to the applicants fields through the third alternative and to enter the Gair Mumkin Khala as Gair Mumkin Rasta. This order was passed on 30th August, 1982. This only amounted to change of user of Government land in records, Khala having already fallen in disuse. 6. Thus, he ordered providing access to the applicants fields through the third alternative and to enter the Gair Mumkin Khala as Gair Mumkin Rasta. This order was passed on 30th August, 1982. This only amounted to change of user of Government land in records, Khala having already fallen in disuse. 6. In appeal filed by Dana Ram, the Revenue Appellate Authority maintained the way provided through Kila Nos. 1, 2 and 3 with modification that if through the land in question, Dana Ram would operate the water course with the permission of the Irrigation Department, in which case it will be public water course and everyone who could secure water supply from the said water course shall be entitled to secure the water through Irrigation Department and it shall not be exclusive privilege of Dana Ram to secure water from the said water course the same may be permitted, and if the Irrigation Department does not think it proper to open the water course, it shall remain a way to the applicants land. 7. This order also noticed that prior to this application, the said Dana Ram has already encroached upon the land in question by making certain constructions over the land. It is during the course of this litigation that he has assured before the Revenue Appellate Authority that he shall remove his encroachments. The Revenue Appellate Authority has also noticed that the objector Dana Ram had deposited Rs. 10,000/-, which has not been really explained for what purpose? 8. Be that as it may, the Revenue Appellate Authority made it clear that so far as making provision for access to the applicants land is concerned, that was solved by providing him land through Murabas No. 35 from Killa Nos. 1 to 5 and in Muraba No. 36 where Dana Ram has encroached upon by constructing a Kothi that shall be removed subject to decision of the Irrigation Department to reopen the Khala. Appeal against that order was dismissed by the Board of Revenue vide order dated 13.01.1988. 9. This has led to filing of Writ Petition No. 702/1988 by Dana Ram. Appeal against that order was dismissed by the Board of Revenue vide order dated 13.01.1988. 9. This has led to filing of Writ Petition No. 702/1988 by Dana Ram. It was for the first time that the ground was raised that the State Government in exercise of its power under Section 128 of the Rajasthan Land Revenue Act has issued a Notification dated 04.09.1982 whereby it has been ordered that the powers of granting way shall be exercised by the village panchayat in respect of boundaries of the fields and that the present dispute being related to the land situated on the boundary of the petitioner, it expressly covers the aspect of granting way as per the notification. 10. The learned Single Judge after noticing the aforesaid contention, without examining the facts of the case and circumstances of the case, has set aside the order passed by the authorities and remitted the case back to SDM for deciding the question of jurisdiction also and pass fresh order on the application moved by Uda Ram. 11. Hence, this appeal. 12. Having heard the learned Counsel for the parties present and having perused the available material, we are of the opinion that the Judgment under appeal cannot be sustained on any ground. 13. Firstly, the notification by which power to grant way on the boundaries of the fields has been conferred on the Panchayat is concerned, it is after the date of the order passed by the SDM providing access to the applicants field. The impugned order of the SDM was passed on 30th August, 1982 whereas the notification on which reliance was placed by the respondent Dana Ram in his grounds of petition was issued on 4th September, 1982. Obviously, the said notification could have no effect on the orders already passed in respect of way in accordance with the existing provisions, therefore, the question did not merit even consideration whether the said notification could be issued and whether it could take away the power of the authority conferred by the Statute. We may, however, notice that this Court has held in Budhdan vs. Board of Revenue & Ors., 2005 (1) WLC 602 that powers conferred under Land Revenue Act on officers thereunder cannot be delegated to Panchayat. 14. We may, however, notice that this Court has held in Budhdan vs. Board of Revenue & Ors., 2005 (1) WLC 602 that powers conferred under Land Revenue Act on officers thereunder cannot be delegated to Panchayat. 14. Be that as it may, since we are of the opinion that the notification does not effect the order passed on 30th August, 1982 and subsequent appeals, in view thereof , the question of jurisdiction does not arise, which was entertained by the learned Single Judge, at all in the present case on the facts disclosed by the respondent petitioner himself in his petition. 15. Secondly, it is manifest from the orders passed by the three authorities noticed above in chronology that petitioner respondent is seeking aid of extraordinary jurisdiction to protect his own wrongful act of trespassing and encroaching upon Government land by constructing a Kothi thereon which he has assured to remove. Thirdly, as that the respondent petitioners right had remained unaffected by the impugned orders, he cannot not even be considered a person aggrieved with the order of providing a right of way granted by the SDM which has been modified by the Revenue Appellate Authority by considering that if the petitioner respondents has removed his encroachment from the land in question and Irrigation Department decides to provide water supply through existing water course in the land in question, it can be used by the petitioner as well as other persons who could utilize water through that water course which shall be passing through Government land and will be public property but if the Irrigation Department does not propose to reopen the water course which is idle for so long, the user of the land for providing way could not be objected to by any one. This, in our opinion, amply safeguarded the petitioners interest and there was no reason for invoking the extra-ordinary jurisdiction to set aside the just order which has sought to strike balance between competing claims for user of Government land. 16. In that view of the matter, in a matter like the instant, the exercise of extra-ordinary jurisdiction of this Court cannot be held to be justified. 17. Accordingly, the appeal is allowed, the Judgment under appeal is set aside. The writ petition is dismissed with no orders as to costs.