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2023 DIGILAW 1918 (RAJ)

Ajeet Singh S/o Shri Kishan Singh v. State Of Rajasthan

2023-10-07

NUPUR BHATI

body2023
ORDER : (1) The present writ petition has been filed under Article 226/227 of the Constitution of India with the following prayers:- “(a) by an appropriate writ, order or direction, the judgment dated 05.07.2018 (Annexure-P/7) passed by the Board of Revenue, Ajmer, judgment dated 23.10.2013 (Annexure/ P/5) passed by the learned Tehsildar, Hanumangarh, may kindly be quashed and set aside. (b) by an appropriate writ, order or direction, the matter may kindly be remanded back to the Tehsildar, Hanumangarh for passing a reasoned and speaking order after hearing the petitioners on the application moved by the private respondent for opening of the way from the land of the petitioners.” (2) The facts apropos to the case are that the respondent No.2 Wali Mohammed submitted an application (Annex.P/1) before the District Collector, Hanumangarh for opening the way in his field situated at Chak 6 HMH, Stone No.160/270 square No.160/270 square No.41, Kila No.1-5, against the present petitioners which came to be forwarded to the Tehsildar (Revenue), Hanumangarh, who in turn, called factual report from the Patwari Halka, Amarpura Thedia with regard to the dispute for the way. The Patwari submitted his factual report with the dispute of way on 03.06.2013 (Annex.P/2) before the Tehsildar, Hasnumangarh. (3) The Tehsildar, Hanumangarh thereafter isued an order/communication dated 04.06.2013 to the Inspector (Land Records), Hanumangarh and directed him to open the way and report accordingly. (4) Being aggrieved of the order dated 04.06.2013 (Annex.P/3), passed by the Tehsildar, Hanumangarh, the petitioners preferred an appeal before the learned Additional District Collector, Hanumangarh, which came to be dismissed vide order dated 23.10.2013 (Annex.P/5). Being aggrieved of the order dated 23.10.2013 (Annex.P/5), the petitioners preferred a revision petition before the learned Board of Revenue, which too was dismissed vide judgment dated 05.07.2018 (Annex.P/7). (5) Hence, being aggrieved of the judgment dated 05.07.2018 (Annex.P/7) passed by the Board of Revenue, Ajmer, order dated 23.10.2013 (Annex.P/5) passed by the Additional District Collector, Hanumangarh and order dated 04.06.2013 (Annex.P/3), passed by the Tehsildar, Hanumangarh, the petitioners prefers the present writ petition. (6) Learned counsel for the petitioners made the following submissions:- (a) that the Tehsildar, Hanumangarh passed the order dated 04.06.2013 (Annex.P/3) without affording any opportunity of hearing to the petitioners and thus, violated the principles of natural justice. The Additional District Collector as well as the Board of Revenue did not consider this aspect of the matter. (6) Learned counsel for the petitioners made the following submissions:- (a) that the Tehsildar, Hanumangarh passed the order dated 04.06.2013 (Annex.P/3) without affording any opportunity of hearing to the petitioners and thus, violated the principles of natural justice. The Additional District Collector as well as the Board of Revenue did not consider this aspect of the matter. (b) that actual factual report was not brought to the notice of the Tehsildar, Hanumangarh as there is a residential dhani on the land and also an electricity transformer is installed for the last so many years and the Tehsildar, Hanumangarh directed to open the way without issuing any notice even to the petitioner but also to the electricity department as there is an electricity transformer on the land and the Additional District Collector as well as the Board of Revenue also did not consider this aspect of the matter. (c) that the jurisdiction to entertain an application under Section 251 of the Rajasthan Tenancy Act lies with the concerned Gram Panchayat and even if the application was moved before the Tehsildar, the Tehsildar should have referred the matter to the concerned Gram Panchayat. Hence, the Tehsildar has exceeded its jurisdiction while entertaining the application filed by the respondent no.2 and the Additional District Collector and the Board of Revenue have also, without application of mind, upheld the order passed by the Tehsildar and thus, have committed serious illegality. (7) Heard learned counsel for the petitioner and perused the material available on record. (8) This Court finds that the Patwari Halka, Amarpura Thedi, in his report, clearly mentioned that as per the jamabandi, there is a recorded way on the disputed land as 0.025 Hectare Gair Mumkin Rasta, which was closed and on the land of the way, a room has been constructed and a transformer is also installed. The Tehsildar, after considering the report of the Patwari, has only ordered to re-open the said closed way. The Additional District Collector, in appeal, has observed that the Tehsildar has not passed any order to open a new way but has only ordered to reopen the recorded way in the revenue record and the same cannot be challenged in appeal. The Additional District Collector also observed that if the petitioners have any grievance against the recorded way, then the remedy is to move appropriate forum for cancellation of the said way. The Additional District Collector also observed that if the petitioners have any grievance against the recorded way, then the remedy is to move appropriate forum for cancellation of the said way. The Board of Revenue also, on the same count, while concurring with the finding of the Additional District Collector, upheld the same. (9) It is well settled proposition of law that a concurrent finding of the fact is binding, unless it is pointed out that it was recorded de hors the pleadings or it was based on no evidence or based on misreading of the material on records and documents. In the case in hand, the Tehsildar has not passed any order to open a new way and the Additional District Collector and Board of Revenue have also concurrently observed that no new was opened rather the sanctioned was, which was closed on the site. (10) In view of the above, this Court does not find any ground to interfere with the concurrent findings arrived at by all the authorities below. The writ petition is, therefore, dismissed being bereft of merit. (11) The stay application and all other pending applications also stand dismissed.