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2019 DIGILAW 702 (RAJ)

Rampyari v. Board of Revenue, Ajmer

2019-03-01

SANGEET LODHA

body2019
JUDGMENT : Sangeet Lodha, J. 1. This petition is directed against order dt. 30.7.18 passed by the Board of Revenue Rajasthan, whereby the revision petition preferred by the respondent-Savatri against the order dt. 14.3.2018 passed by the Revenue Appellate Authority, (RAA), Hanumangarh, setting aside the order dt. 19.2.18 passed by the Sub Divisional Officer (SDO), Nohar opening a new way through the petitioners' land, has been allowed. 2. The facts relevant are that the respondent having khatedri land ad measuring 1.5810 hectare comprising khata No. 156/136 Stone No. 319/380, Murabba No. 30, Kila No. 1 to 3 and 8 to 10 in Chak 13KNN, made an application under Sec. 251-A of the Rajasthan Tenancy Act, 1955 (for short "the Act") before the SDO, Nohar, for opening of a new way through the petitioners' land, comprising Stone No. 319/379, Murabba No. 38, Kila No. 21 on the ground that no alternative means of access to his land is available. The application was contested by the petitioners by filing a reply thereto, taking the stand that in Kila No. 21, the petitioners have constructed a room and as a matter of fact, there exists a way in Murabba No. 38, Kila No. 20 & 25, which goes from Ratanpura to other villages through Murabba No. 38 and Murabba No. 30. It was averred that the way to the respondent's land passes through Murabba No. 29, Kila No. 5 of Chak 13KNN which has been closed by khatedar of the land Shri Madanlal. It was contended that the land of the petitioners and the respondent are situated in different chak i.e. Chak 13 KNN and Chak 1 RPM and therefore, the way may not be sanctioned through the land of the petitioners. 3. On the complaint made by the respondent regarding illegal construction being raised by the petitioners, at the instance of Tehsildar, Nohar, the Land Record Inspector, Fefana forwarded the site inspection report prepared by the Patwari Halka wherein it was reported that at the corner of Kila No. 21 of Stone No. 319/379, new construction has been raised. Regarding the feasibility of the opening of the new way, it was reported that the new way is possible be sanctioned either through Kila No. 5 of Stone No. 318/380 or Kila No. 21 of Stone No. 319/379. 4. Regarding the feasibility of the opening of the new way, it was reported that the new way is possible be sanctioned either through Kila No. 5 of Stone No. 318/380 or Kila No. 21 of Stone No. 319/379. 4. After consideration of the rival submissions relying upon the report submitted by the Patwari Halka as aforesaid, the SDO vide order dt. 19.2.18, sanctioned the way through petitioners land comprising Stone No. 319/379, Kila No. 21 where the construction raised by the petitioners was in existence. Aggrieved by the order passed by the SDO, the petitioners preferred an appeal before the RAA, Hanumangarh. After due consideration of the rival submissions relying upon the report submitted by the Land Revenue Inspector, the RAA arrived at the finding that the alternative way is available through Kila No. 5 of Stone No. 318/380 in Chak 13 KNN and therefore, the matter with regard to sanctioning of the way needs to be decided after impleading the affected agriculturists as party to the proceedings. Accordingly, the matter was remanded to the SDO, Nohar for consideration afresh after giving an opportunity to the respondent and the affected agriculturists. 5. Aggrieved by the order passed by the RAA as aforesaid, the respondent preferred a revision petition before the Board of Revenue. The Board of Revenue opined that in the alternative way available, there exists kachha khala and therefore, it is not possible to sanction the way. The Board arrived at the finding that the construction was raised by the petitioners in their land at Kila No. 21 after the respondent making an application for sanction of the way. Accordingly, while setting aside the order passed by the RAA and restoring the order passed by the SDO, the Board further directed that the SDO shall also decide the compensation for removal of the construction raised. Hence, this petition. 6. Learned counsel appearing for the petitioners contended that the SDO, Nohar had sanctioned the way on the basis of the report submitted by the Land Record Inspector which was prepared at the back of the petitioners in collusive manner without there being any order passed by the competent authority. Hence, this petition. 6. Learned counsel appearing for the petitioners contended that the SDO, Nohar had sanctioned the way on the basis of the report submitted by the Land Record Inspector which was prepared at the back of the petitioners in collusive manner without there being any order passed by the competent authority. Learned counsel submitted that the said report was prepared on the basis of the complaint made by the respondent regarding the construction raised by the petitioners in their own land and not in accordance with provisions of Rule 69 of Rajasthan Tenancy (Government) Rules, 1955 (for short "the Rules") and therefore;, the same was not open to be relied upon by the SDO for the purpose of opening a new way in exercise of the power conferred under Sec. 251 A of the Act and thus, on the facts and in the circumstances of the case, the order passed by the RAA remanding the matter to the SDO for consideration afresh after giving an opportunity of hearing to the affected agriculturists, the petitioners herein and the khatedar of the land comprising Kila No. 5 of Stone No. 318/380 of Chak 13 KNN, was absolutely justified and the same was not required to be interfered with by the Board of Revenue in exercise of its revisional jurisdiction. 7. On the other hand, the counsel appearing for the respondent while supporting the order passed by the Board of Revenue submitted that the respondent had preferred an application before Tehsildar, Nohar to restrain the petitioners not to raise any construction on the way passing through Kila No. 21 during the pendency of the application preferred before the SDO, Nohar and accordingly, the Tehsildar had directed the Land Record Inspector to inquire into the matter. Drawing the attention of the Court to the report submitted by the Land Record Inspector, learned counsel submitted that after site inspection, it was specifically reported that in the south west corner of Kila No. 21 of the land adjacent to the firni(way), new construction was raised by Lalchand and thus, after due consideration of the matter in its entirety, the order impugned passed by the Board of Revenue does not warrant any interference by this Court in exercise of its supervisory jurisdiction under Article 227 of the Constitution of India. 8. I have considered the rival submissions and perused the material on record. 9. 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 Sec. 251A 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 respondent for access to his holding. However, it has come on record that the respondent was using the way passing through Kila No. 5 of Stone No. 318/380. Apparently for sanctioning the way, two alternatives were available; one through the petitioners land of Kila No. 21, Stone No. 319/379 in Chak 13 KNN and another through the land comprising Kila No. 5 of Stone No. 319/379 in Chak 13 KNN. It has come on record that in the land comprising Kila No. 5 of Stone No. 318/380, there exists, a kachha khala whereas, in the petitioners land at Kila No. 21, there exists a constructed room. 11. It is noticed that for giving effect the provisions of Section 251A of the Act, Chapter XII has been inserted in the Rules of 1955. For disposal of the application preferred for grant of permission under sub-Section (1) of Section 251A of the Act, the application preferred in the prescribed form is required to be disposed of by the SDO after inquiry in the manner laid down under Rule 69 of the Rules of 1955, which reads as under:- "69. For disposal of the application preferred for grant of permission under sub-Section (1) of Section 251A of the Act, the application preferred in the prescribed form is required to be disposed of by the SDO after inquiry in the manner laid down under Rule 69 of the Rules of 1955, which reads as under:- "69. Enquiry and disposal of application.-On receipt of an application in Form I, the Sub-Divisional Officer shall either inspect the site himself or get it inspected by an officer not below the rank of the Inspector Land Records and invite objections from the affected persons. The Sub-Divisional Officer after affording an opportunity of being heard to the parties and making such further enquiry, as he thinks necessary, if satisfied that- (i) the necessity is absolute necessity and it is not for mere convenient enjoyment of holding; and (ii) particularly in case of a new way through another khatedar's holding, the absence of alternative means of access is proved, may allow the application. The application shall be decided by the Sub-Divisional Officer within 90 days from the date of application." 12. It is not disputed before this Court that in the instant case, the SDO never inspected the site himself or obtained the inspection report by an officer not below the rank of Inspector Land Records as mandated by Rule 69 of the Rules of 1955, rather, the SDO relied upon the site inspection report received from; Tehsildar, Nohar, which was submitted by the Halka Patwari to the Land Record Inspector in the proceeding initiated on the complaint made by the respondent regarding the construction being raised by the petitioners herein on their land at Kila No. 21 of Murabba No. 319/379. It is not in dispute that the site inspection report was prepared by the Halka Patwari in the back of the petitioners and the petitioners had no occasion to raise objections against the same as contemplated under Rule 69 of the Rules of 1955. Suffice it to say that while passing the order, the SDO has not followed the procedure laid down under Rule 69 of the Rules of 1955. Suffice it to say that while passing the order, the SDO has not followed the procedure laid down under Rule 69 of the Rules of 1955. As a matter of fact in the instant case when two alternatives were available for providing the way to the respondent, it was all the more necessary for the SDO to obtain the site inspection report as mandated by Rule 69 of the Rules of 1955 and thereafter, after inviting the objections and giving an opportunity of hearing to the parties and making such further enquiry as considered necessary, the appropriate order could have been passed. In this view of the matter, the RAA was absolutely justified in remanding the matter directly to the SDO to conduct the enquiry as mandated by Rule 69 of the Rules of 1955 and pass the appropriate order, after giving an opportunity of hearing to the effected parties. 13. Thus, in the considered opinion of this Court, the Board of Revenue has seriously erred in interfering with the order; passed by the RAA keeping in view the provisions of Section 251A of the Act and Rule 69 of the Rules of 1955. 14. In the result, the writ petition succeeds, it is hereby allowed. The order impugned dt 30.7.18 passed by the Board of Revenue Rajasthan is set aside and the order dt. 14.3.18 passed by the Revenue Appellate Authority, Hanumangarh in Appeal No. 55/18/225 RTA is restored. No order as to costs.