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Rajasthan High Court · body

2018 DIGILAW 2315 (RAJ)

Deva Ram S/o Shri Tilok Ram v. Mangu Ram S/o Shri Moti Ram

2018-12-19

SANGEET LODHA

body2018
JUDGMENT : 1. By way of this writ petition, the petitioners have questioned legality of order dated 16.11.18 passed by the Board of Revenue Rajasthan, whereby a revision petition preferred by the petitioners against the order dated 4.7.17 passed by the Revenue Appellate Authority (RAA), Nagaur, affirming the order dated 8.6.16 of the Sub Divisional Officer (SDO), Degana, directing opening of the new way in exercise of the power conferred under Section 251-A of Rajasthan Tenancy Act, 1955 (for short “the Act”), has been dismissed. 2. The facts relevant are that the respondent no.1 to 8 herein having khatedri land ad measuring 6.96 hectare comprising khasra no.14 of Village-Miyasar, Tehsil-Degana, made an application under Section 251-A of the Act, before the SDO, Degana, praying for opening of a new way through inter alia the petitioners' holding, comprising khasra no.29, 27, 26, 19, 17 & 15 on the ground that no alternative means of access to their land is available. The application was contested by the petitioners by filing a reply thereto, taking the stand that the way sought to be opened is not in existence and on account of existence of bara, chhapara and water tank etc. on the land of khasra no.29, 27, 26 & 15, it is not feasible to open the way through the said land. That apart, it was contended that already there exists a recorded way in the western side of the land situated in the boundaries of village Chui, which is being used by the khatedar to reach village Miyasar and periphery of village Hapchar. It was contended that the recorded way being 6-7 kms. in length cannot be a ground for opening a new way. 3. The application preferred by the respondent no.1 to 8 under Section 251-A of the Act as aforesaid, was allowed by the SDO, Degana, vide order dated 8.6.16 and directions were issued for opening the new way through inter alia the petitioners' land comprising khasra nos. 29, 27, 26. Further, Tehsildar, Degana was directed to make the entry in the revenue record accordingly. 4. Aggrieved by the order dated 8.6.16 passed by the SDO, Degana, the petitioners preferred an appeal before the RAA, Nagaur under Section 225 of the Act. After due consideration, the appeal preferred was dismissed by the RAA, Nagaur, vide order dated 4.7.17. 5. Further, Tehsildar, Degana was directed to make the entry in the revenue record accordingly. 4. Aggrieved by the order dated 8.6.16 passed by the SDO, Degana, the petitioners preferred an appeal before the RAA, Nagaur under Section 225 of the Act. After due consideration, the appeal preferred was dismissed by the RAA, Nagaur, vide order dated 4.7.17. 5. Aggrieved thereby, the petitioners preferred a revision petition before the Board of Revenue under Section 230 of the Act. After due consideration, the revision petition preferred by the petitioners as aforesaid, stands dismissed by the Board of Revenue by the order impugned. Hence, this petition. 6. Learned counsel for the petitioners contended that the Board of Revenue has seriously erred in dismissing the revision petition preferred by the petitioners on the ground that the alternative way available to the respondents is 7 kms. in length, whereas the new way sought to be opened is only 2 kms. in length. Learned counsel submitted that if alternative way is available merely for shortening the distance to be covered by the applicants, no new way is permissible to be opened under Section 251A of the Act. It is submitted that the recorded way situated in boundary of village Chui and two other ways; one from village Hapchar passing through khasra nos.131, 132, 133, 134, 124, 125, 86, 85 and another from northern side of khara nos.19, 20 & 24 of village Miyasar being available, the SDO has acted without jurisdiction in opening the new way as prayed for. Learned counsel submitted that even otherwise on account of existence of rooms, bara and chhapara in khasra no.29, 27 & 26 belonging to the petitioners, it is not feasible to open the new way passing through said khasras and thus, ignoring this aspect of the matter, the Board of Revenue has seriously erred in affirming the order passed by the RAA, Nagauar, upholding the order passed by the SDO, Degana opening the new way. 7. On the other hand, learned counsel appearing for respondents no. 1 to 8 submitted that the order impugned passed by the Board of Revenue, affirming the concurrent findings arrived at by the SDO, Degana and RAA, Nagaur, after objective consideration of the material on record including the inspection reports submitted by Tehsildar, Degana, remain findings of facts which do not warrant interference by this court in exercise of its supervisory jurisdiction. Drawing the attention of this court to the map produced on record, learned counsel submitted that for using the alternative way suggested by the petitioners, the respondents have to first travel from village Miyasar to village Chui and then from village Chui to village Hapchar and thus, the distance to be covered by them to reach their land would be about 7 kms. from their native village Miyasar and thus, by no means, the said way alleged to be available could be considered to be alternative approach way available to the petitioners. Learned counsel submitted that the petitioners have already deposited the amount determined for acquiring the land for opening the way and some of khatedars have withdrawn the amount, the land already stands mutated in the revenue record as gair mumkin way and the way opened is already put to public use and thus, the order passed by the SDO, Degana, opening the way has already been executed. 8. I have considered the rival submissions and perused the material on record. 9. It is to be noticed that as per the provisions of Section 251-A of the Act, a tenant or a group of tenants intended to have a new way, or enlargement or widening of an existing way through the holding of another khatedar to have access to his holding or as the case may be, their holdings and the matter is not settled by mutual agreement, they may apply such facility to the Sub Divisional Officer concerned. As per mandate of the provisions incorporated as aforesaid, before directing opening of the new way, the SDO has to arrive at the satisfaction after a summary inquiry that the necessity is absolute and it is not for mere convenient enjoyment of the holding and that absence of alternative means to access, is proved. Suffice it to say that the new way from the agriculture holding of any khatedar cannot be permitted to be opened unless and until the requirements as specified under Section 251-A of the Act, noticed above, are satisfied. 10. Adverting to the facts of the present case, it is a matter of record that no sanctioned way is available to the respondents no. 1 to 8 for access to their holding. The alternative way alleged to be available is in the length of 7 kms. 10. Adverting to the facts of the present case, it is a matter of record that no sanctioned way is available to the respondents no. 1 to 8 for access to their holding. The alternative way alleged to be available is in the length of 7 kms. and for using the said way as approach road to their agriculture field, the petitioners are required to travel from village Miyasar to village Chui and then from village Chui to village Hapchar whereas, the new way sought to be opened through inter alia khatedari land of the petitioners herein would be only 2 kms. in length. As a matter of fact, this factual position is not even in dispute. Further, as noticed by the Board of Revenue, on the said way being opened, the distance between the village Hapchar and village Chui and gravel road of village Chui shall stand reduced by 5 kms. and thereby, all the villagers shall be benefited. In the considered opinion of this court, on the facts and in the circumstances of the case, it is difficult to accept the way in the length of 7 kms. available, which passes through two villages, as an alternative way available to the petitioners for access to their agriculture field. In this view of the matter, the concurrent findings arrived at by the revenue courts taking into consideration all the relevant aspects of the matter and the larger interest of the villagers, cannot be said to be capricious or perverse and thus, the order impugned does not warrant any interference by this court in exercise of its supervisory jurisdiction under Article 227 of the Constitution of India. 11. In the result, the petition fails, it is hereby dismissed. No order as to costs.