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2022 DIGILAW 175 (RAJ)

Rajaram v. Gopal.

2022-01-18

PUSHPENDRA SINGH BHATI

body2022
JUDGMENT 1. In wake of instant surge in COVID-19 cases and spread of its highly infectious Omicron variant, lawyers have been advised to refrain from conning to the Courts. 2. This writ petition has been preferred claiming the following reliefs: "i) That the impugned order dated 02.03.2016 passed by Board of Revenue, Ajmer, Annexure-8 be quashed and set aside; and ii) That the impugned order dated 25.03.2013 passed by Sub Divisional Officer, Pilibanga, Annexure-5 be quashed and set aside; and iii) By an appropriate Order the record of the case be called for; iv) The application preferred by the Non-petitioner no.l be dismissed with costs throughout; v) In the alternative to above (iv), if the Hon'ble Court comes to a different conclusion, the impugned orders Annexures be set aside and the matter be remanded back with the direction to the Non-Petitioner no.4 to decide the application afresh after affording opportunity to the parties and in accordance with law." 3. As the pleaded facts would reveal, the respondent No.l moved an application under Section 251-A of the Rajasthan Tenancy Act, 1955 (hereinafter referred to as 'Act of 1955") before the Assistant Collector & Sub Divisional Officer, Pilibanga, District Hanumangarh (in short, 'SDO'), stating therein that an agricultural land in Chak 1 J.W. at Stone No.93/359 in Murabba No.23 in Kila Nos.21, 22, 23 & 24 admeasuring 4 bighas, and at Stone No.93/360 in Murabba No.28 in Kila Nos.l, 2, 3, 8, 9 & 10 admeasuring 6 bighas, totalling 2.506 hectare command and uncommand land was recorded as khatedari land of the respondent No.l(applicant) in the revenue records. It was further stated that in Chak 1 J.W. at Stone No.93/359 in Murabba No.23 in Kila No.25, agricultural land measuring 1 bigha of the petitioner and respondents No.6 & 7 is situated. 3.1 It was further stated that adjacent to the said land, at Stone No.92/359 Murabba No.22 Kila No.l, 10, 11, 20 & 21, 2-2 biswa of land was sanctioned as government way. 3.1 It was further stated that adjacent to the said land, at Stone No.92/359 Murabba No.22 Kila No.l, 10, 11, 20 & 21, 2-2 biswa of land was sanctioned as government way. 3.2 It was the contention of the respondent that for coming to his field, he is being using this way, and that, from the field of the petitioner from east to west, the respondent is using the way since time immemorial, but the said way is not sanctioned, and thus, the respondent prayed that since the respondent/applicant has no other alternate way, therefore, the way which is being used by him may be sanctioned. 4. Learned counsel for the petitioner submits that vide order dated 25.03.2013 passed by the SDO on the aforementioned application, while passing a preliminary order, it was directed the Tehsildar (Revenue), Pilibanga shall determine the D.L.C. of 2 biswa of land, and on the basis thereof, shall compute approximate cost for construction of Bada; the amount so determined shall be deposited by the respondent No.l (applicant). 4.1 Learned counsel further submits that against the aforementioned order dated 25.03.2013, the petitioner preferred an appeal before the learned Revenue Appellate Authority, Hanumangarh, whereupon, vide order dated 13.08.2013, while partly allowing the said appeal and setting aside the order dated 25.03.2013, the matter was remanded back to the SDO with a direction to pass fresh orders in accordance with Section 251-A of the Act of 1955 and the relevant Rules. 4.2 Learned counsel also submits that thereafter, the respondent No.l (applicant), being aggrieved by the aforesaid order dated 13.08.2013, preferred a revision petition before the learned Board of Revenue for Rajasthan at Ajmer, which was allowed vide order dated 02.03.2016, while setting aside the order dated 13.08.2013 passed by the learned Revenue Appellate Authority, and upholding the order dated 25.03.2013 passed by the SDO. 4.3 Learned counsel further submits that at the place, where the respondent No.l (applicant) is seeking the way, the house of the petitioner is situated, and thus, the respondent/applicant was not entitled for sanction of such way. 4.4 Learned counsel also submits that the application preferred by the respondent No.l (applicant) was decided without following the principles of natural justice, coupled with the fact that the impugned order dated 25.03.2013 was passed by the SDO without any ocular or documentary evidence having been placed on record, while filing such application. 4.4 Learned counsel also submits that the application preferred by the respondent No.l (applicant) was decided without following the principles of natural justice, coupled with the fact that the impugned order dated 25.03.2013 was passed by the SDO without any ocular or documentary evidence having been placed on record, while filing such application. 4.5 Learned counsel further submits that the respondent/applicant was having another way available to him, and in view of such fact as also the fact that the petitioner's house and Bada are situated thereon, in case the sanctioning of a new way is sustained, it will be highly prejudicial to the rights of the present petitioner. 4.6 Learned counsel also submits that the impugned order was passed even without making any enquiry and calling of report from the Tehsildar or Patwari, as to the availability of an alternative way to the respondent/applicant to approach his field. 4.7 Learned counsel for the petitioner thereafter, has drawn the attention of this Court towards Sections 251 & 251-A of the Act of 1955, which read as under: "251. Right of way and other private easement- (1) In the event of any holder of land, in actual enjoyment of a right of way or other easement or right, having without consent, has been disturbed in such enjoyment otherwise than in due course of law, the Tehsildar may, on the application of the holder of land so disturbed and after making a summary inquiry into the fact that such enjoyment and disturbance, order the disturbance to be removed or stopped and the applicant-holder to be restored to such enjoyment, notwithstanding any other title that may be set up before the Tehsildar against such restoration. (2) No order passed under this section shall debar any person from establishing such right or easement as he may claim by a regular suit in a competent civil court." "251 A. Laying of underground pipeline or opening a new way through another khatedar's holding or enlarging the existing way. (2) No order passed under this section shall debar any person from establishing such right or easement as he may claim by a regular suit in a competent civil court." "251 A. Laying of underground pipeline or opening a new way through another khatedar's holding or enlarging the existing way. - (1) Where(a) a tenant intends to lay an underground pipeline through the holding of another khatedar for the purpose of irrigation of his holding; or (b) a tenant or a group of tenants intend 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 of and the matter is not settled by mutual agreement, the tenant or the tenants, as the case may be, may apply for such facility to the Sub-Divisional Officer concerned, and the Sub-Divisional Officer, if he is satisfied after a summary inquiry, that (1) 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, that absence of alternative means of access proved may, be order, allow the applicant, to lay pipeline, at least three feet beneath the surface of the land, along 'the line demarcated or pointed out by the tenant who holds that land, or to have a new way. not wider than thirty feet, through the land on such track as pointed out by the tenant who holds that land, and if no such track is pointed out, through the shortest or nearest route, or to enlarge or widen the existing way, not exceeding up to thirty feet, on payment of such compensation as may be determined by the Sub-Divisional Officer, in the prescribed manner, to the tenant who holds the land through which the right to lay pipeline or have a new way or enlarge or widen an existing way is granted. (2) Where a right to have a new way or enlarge or widen an existing way is granted under sub-section (1), the tenancy in respect of the land comprising such way shall be deemed to have been extinguished and the land shall be recorded as rasta in the revenue records. (2) Where a right to have a new way or enlarge or widen an existing way is granted under sub-section (1), the tenancy in respect of the land comprising such way shall be deemed to have been extinguished and the land shall be recorded as rasta in the revenue records. (3) The persons permitted to avail any of the facilities referred to in sub-section (1) shall not, by virtue of the said facility, acquire any other right in the holding through which such facility is granted. 4.8 Learned counsel however, submits that the application so preferred by the respondent/applicant was not maintainable under Section 251-A of the Act of 1955, as looking to the averments made in the said application, at best such an application could have been preferred under Section 251 of the Act of 1955, since the respondent/applicant is alleging obstacle or hindrance in the enjoyment of his right of way. Learned counsel thus submits that the aforementioned impugned orders passed by the SDO and the learned Board of Revenue deserve to be set aside. 5. On the other hand, learned counsel for the respondent (applicant) submits that though there is existence of a government way at Stone No.92/359 Kila Nos.l, 10, 11, 20 & 21, but despite of this, the respondent/applicant can only reach his field through the way at southern side of the petitioner's land (Kila No.25), and therefore, the respondent (applicant) has sought the relief to the effect that the said way at southern side of land (Kila No.25) may be sanctioned; the said relief has rightly been granted by the learned courts below vide the impugned orders. 5.1 Learned counsel further submits that nowhere in his reply before the learned court below, the petitioner has averred about existence of any alternative way to the respondent/applicant, except the one which has been sought to be sanctioned. 5.2 Learned counsel also submits that the argument advanced on behalf of violation of the principles of natural justice in granting the relief to the respondent(applicant) is unfounded, as before passing the impugned order by the SDO on the application under Section 251-A, notices were issued and reply was filed by the petitioner, and the same was considered. 5.2 Learned counsel also submits that the argument advanced on behalf of violation of the principles of natural justice in granting the relief to the respondent(applicant) is unfounded, as before passing the impugned order by the SDO on the application under Section 251-A, notices were issued and reply was filed by the petitioner, and the same was considered. 5.3 Learned counsel further submits that since it is an admitted fact that under Section 251-A of the Act of 1955, only summary procedure is required to be adopted, therefore, as per the settled legal position, the evidence is not required therefor, that too, in view of the undisputed factual matrix of the case, which tilts in favour of the respondent/applicant. 5.4 As to the argument advanced on behalf of the petitioner regarding the application preferred by the respondent/applicant being not maintainable under Section 251-A of the Act of 1955, learned counsel for the respondent contended that such application was very much maintainable under the said provision of law, as the respondent/applicant was seeking sanctioning of the way in question so as to enable him to reach his land. 6. After hearing learned counsel for the parties as well as perusing the record of the case, this Court finds that the relief as sought by the respondent (applicant) in relation to the way in question has been granted by the Sub Divisional Officer vide its preliminary order dated 25.03.2013, while exercising powers under Section 251-A of the Act of 1955, which was a well reasoned order. 7. Though the said order dated 25.03.2013 was partly interfered with by the learned Revenue Appellate Authority vide its order dated 13.08.2013, but the same was restored by the learned Board of Revenue vide order dated 02.03.2016. 8. This Court also finds that the petitioner had enough opportunities before various forums to prove that as per law, the way in question was not required to be sanctioned on count of absence of an absolutely necessity, but it is clear from the record that the way in question was an absolute necessity. Though the petitioner has tried to point out another way, but could not prove at any juncture that the said way was functional or was available to the respondent (applicant). 9. Though the petitioner has tried to point out another way, but could not prove at any juncture that the said way was functional or was available to the respondent (applicant). 9. On a perusal of the record of the case, it is clear that the right to way of the respondent (applicant) arising out of the absolute necessity has been rightly maintained by the impugned orders, as per the spirit of Section 251-A of the Act of 1955. 10. This Court further finds that while passing the basic order dated 25.03.2013 in favour of the respondent (applicant), the SDO has taken into consideration the record, and nowhere it has been pointed that there was an alternative way available. 11. The necessary ingredients for invocation of Section 251-A of the Act of 1955 for granting the relief as sought by the respondent (applicant) are clearly found in the present case. 12. In view of the above, no case for making any interference is made out. 13. Consequently, the present petition is dismissed. All pending applications stand disposed of.