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2024 DIGILAW 221 (RAJ)

Kan Nath, through His Legal Representatives v. Board of Revenue for Rajasthan at Ajmer

2024-02-07

VINIT KUMAR MATHUR

body2024
ORDER : 1. Heard learned counsel for the parties. 2. The present writ petition has been filed against the order dated 13.10.2022 passed by the Revenue Appellate Authority and the order dated 31.07.2023 passed by the Board of Revenue, Rajasthan, Ajmer. 3. Briefly, the facts noted in the present case are that the petitioners are recorded khatedars of a land bearing Khasra No. 49 at Village Bankas, Tehsil, Jaitaran, District Pali which is adjoining to the land located at Khasra No. 48 of private respondent Nos. 4 & 5. The private respondents are also recorded khatedar tenants of the lands of Khasra Nos. 54 & 55. Since there was no way for the private respondents to approach Khasra Nos. 54 & 55, an application under Section 251-A of the Rajasthan Tenancy Act, 1955 (hereinafter referred to as the ‘Act of 1955’) and the Rules framed thereunder was filed by the private respondents. The application so preferred was rejected by the learned Sub Divisional Officer, Jaitaran vide order dated 21.03.2022 on the ground that the private respondents-applicants have not arrayed the khatedar tenants of Khasra No. 56 as party respondents. The order passed by the SDO, Jaitaran was assailed by the private respondents by way of filing an appeal before the Revenue Appellate Authority, Pali. The Revenue Appellate Authority, Pali, vide its judgment dated 13.10.2022 allowed the appeal and it was directed that the way be given to the appellants (respondents herein) through 12 Biswa land of Khasra No. 48 & 1 Biswa land of Khasra No. 49 of the petitioners. The order of the Revenue Appellate Authority, Pali was assailed by the petitioners by way of filing a revision petition before the Board of Revenue, Rajasthan, Ajmer and the Board of Revenue vide judgment dated 31.07.2023, dismissed the revision petition affirming the judgment dated 13.10.2022 passed by the Revenue Appellate Authority, Pali. Hence, the present writ petition has been filed. 4. Learned counsel for the petitioners submits that on the application preferred by the private respondents under Section 251-A of the Act of 1955, a Site Inspection Report was submitted by the Patwari Halka on 06.04.2021, wherein, three options were proposed. As per the Option No. 2, the land of Khasra No. 56 can be utilized for giving the way to the private respondents for going to their Khasra Nos. As per the Option No. 2, the land of Khasra No. 56 can be utilized for giving the way to the private respondents for going to their Khasra Nos. 54 & 55 as the same is the shortest route and, thus, the khatedar tenant of Khasra No. 56 was a necessary party. 5. Learned counsel for the petitioners further submits that since the khatedar tenant of Khasra No. 56 was not arrayed as party respondent, therefore, the learned SDO rejected the application preferred by the private respondents. Learned counsel submits that Section 251-A of the Act of 1955 read with Rule 69 of the Rajasthan Tenancy Rules, 1955 mandates for providing the shortest or nearest route, thus, as per the Site Inspection Report of the Patwari dated 06.04.2021, the Option No. 2 is the only feasible option for providing the way to the private respondents to approach their fields located in Khasra Nos. 54 & 55. 6. Learned counsel for the petitioners also submits that the Revenue Appellate Authority has not given any reasoning for not impleading the khatedar tenant of Khasra No. 56 as party respondents and at the same time, there is no reasoning in the appellate order for not providing the shortest way as per Option No. 2 mentioned in the Site Inspection Report of the Patwari Halka dated 06.04.2021. The order of the Revenue Appellate Authority does not reflect any reason for providing the way only through Khasra No. 49 and not through Khasra No. 56 which is the shortest possible way among the two. He further submits that on the same ground, the Board of Revenue has also rejected the revision petition without recording any reason while affirming the judgment passed by the Revenue Appellate Authority, Pali. He, therefore, prays that the writ petition may be allowed, the order passed by the SDO, Jaitaran may be upheld and the appellate as well as revisional orders dated 13.10.2022 & 31.07.2023 may be quashed and set aside. 7. Per contra, learned counsel for the private respondents vehemently supported the judgments passed by the Revenue Appellate Authority and the Board of Revenue and submits that for going to Khasra Nos. 7. Per contra, learned counsel for the private respondents vehemently supported the judgments passed by the Revenue Appellate Authority and the Board of Revenue and submits that for going to Khasra Nos. 54 & 55, there is no alternate way available with the respondents, therefore, it is the absolute necessity for which the application for grant of way has been preferred by the private respondents under Section 251-A of the Act of 1955. He submits that for providing the way for going to Khasra Nos. 54 & 55, the private respondents have surrendered 12 Biswas of land in Khasra No. 48. 8. Learned counsel for the private respondents submits that both the appellate court as well as the revisional court have taken note of the parameters provided under Section 251-A of the Act of 1955 and had rightly passed the judgments dated 13.10.2022 and 31.07.2023, thus, no interference is warranted by this Court. 9. I have considered the submissions made at the Bar and have gone through the relevant record of the case including the orders impugned. 10. The Site Inspection Report prepared by the Patwari on 06.04.2021 shows that the petitioners’ Khasra No. 49 is located on the left side of Khasra No. 48 of the respondents and Khasra No. 56 is located beneath Khasra No. 48 of the private respondents. The Khasra Nos. 54 & 55 are located beneath Khasra No. 49 and on the left side of Khasra No. 56. As per the report of the Patwari Halka dated 06.04.2021, three options were given. The Khasra Nos. 54 & 55 are located beneath Khasra No. 49 and on the left side of Khasra No. 56. As per the report of the Patwari Halka dated 06.04.2021, three options were given. It will be fruitful to reproduce the three options hereunder: ^^ÁFke fodYi%& [kljk uEcj 54 o 55 esa tkus gsrq jkLrk uhyh L;kgh ls nf’kZr ekdZ ,ŒchŒlhŒMhŒ gSaA tks [kljk uEcj 47] 48] 49 esa fLFkr gSA [kljk uEcj 47 xSŒ eqŒ xkspj gSA ftldh yEckbZ 77 xt xq.kk 4 xt ¾ 16 fcLok gSA nwljk fodYi%& yky L;kgh ls nf’kZr ekdZ bZŒ,QŒ tks [kljk uEcj 56 o 47 esa fLFkr gSA ftldh yEckbZ 73 xt xq.kk 4 xt ¾ 15 fcLok gSA [kljk uEcj 47 xSŒ eqŒ xkspj gSA rhljk fodYi%& dkyh L;kgh ls nf’kZr ekdZ thŒ,pŒvkbZŒtsŒdsŒ,yŒ tks [kljk uEcj 53] 51] 44] 47 esa fLFkr gSA [kljk uEcj 44 o 47 xSŒeqŒ xkspj gSA bl ÁLrkfor jkLrs dh yEckbZ 344 xt xq.kk 4 ¾ 3 ch?kk 9 fcLok gSA mijksDr rhuksa fodYiksa esa vkus okyh Hkwfe [kkyh gSA fdlh Ádkj dk fuekZ.k ugha gSA** 11. A bare perusal of the three options clearly shows that for going to Khasra Nos. 54 & 55, if the land Khasra No. 49 is used then 16 Biswa land will be utilized, whereas if the land is used through Khasra No. 56, then 15 Biswa land is required and as per Option No. 3, the land used will be 3 Bigha and 9 Biswa. Thus, while deciding the application preferred by the private respondents, the learned SDO rightly held that if the second option is used for providing the way for going to Khasra Nos. 54 & 55, then the khatedar tenant of Khasra No. 56 was required to be arrayed as party respondent and since the private respondents have not impleaded the khatedar of Khasra No. 56 as party respondent, therefore, their application was dismissed. 12. On appeal, the Revenue Appellate Authority reversed the order passed by the SDO only on the ground that only 1 Biswa land will be used of Khasra No. 49 for going to the land of Khasra Nos. 54 & 55 and, therefore, there was no need to implead the khatedar tenant of Khasra No. 56. 12. On appeal, the Revenue Appellate Authority reversed the order passed by the SDO only on the ground that only 1 Biswa land will be used of Khasra No. 49 for going to the land of Khasra Nos. 54 & 55 and, therefore, there was no need to implead the khatedar tenant of Khasra No. 56. In the humble opinion of this Court, the finding recorded by the appellate court and affirmed by the revisional court is not sustainable in the eye of law for the reason that no finding has been recorded by the appellate court as well as by the revisional court with regard to the fact that as to why the way cannot be provided through Khasra No. 56 as per the Option No. 2 of the Site Inspection Report, which is the shortest possible way. The finding recorded by the appellate court that way through Khasra No. 56 cannot be granted is not supported by any reasoning and therefore, the same is liable to be set aside. 13. On the same footing, while affirming the finding recorded by the Revenue Appellate Authority, Pali, the Board of Revenue has also not recorded any finding. In the opinion of this Court, when the law provides for the shortest or nearest route to be provided, then as per the report of the Patwari dated 06.04.2021, since only 15 Biswas land is to be utilized for going to Khasra Nos. 54 & 55 through Khasra No. 56, then the Option No. 2 should have been exercised and if Option No. 2 was required to be exercised, then the khatedar tenant of Khasra No. 56 was a necessary party in the matter and was required to be impleaded as party respondents by the private respondents. 14. In view of the discussions made above, the writ petition merits acceptance and the same is allowed and the orders passed by the Revenue Appellate Authority, Pali dated 13.10.2022 and the Board of Revenue, Rajathan, Ajmer dated 31.07.2023 are quashed and set aside. However, it will be open for the private respondents to move a fresh application for providing the way for going to Khasra Nos. 54 & 55, after impleading the khatedar tenants of Khasra Nos. 49 and 56 as party respondents. 15. However, it will be open for the private respondents to move a fresh application for providing the way for going to Khasra Nos. 54 & 55, after impleading the khatedar tenants of Khasra Nos. 49 and 56 as party respondents. 15. During the pendency of the writ petition, if the appellate and the revisional orders have already been given effect to, the respondents shall restore back the position as it was existing prior to the passing of the orders.