Order : 1) The present writ petition has been filed with the following prayers:- “It is therefore humble respectfully prayed that this writ petition may kindly be allowed and the order dated 16.04.2021 (Annx.5) passed by the Board of Revenue, Ajmer in Revision Petition No.4504/2015; Roopdan & Ors. Vs. Heer Singh & Ors., may be quashed and the order dated 18.06.2015 (Annx.3) passed by the court of Additional District Collector, Jalore in first Revenue Appeal No.82/2015; Heer Singh & Ors. Vs. Roopdan & Ors., may be upheld. Any other appropriate writ order or direction which this Hon’ble Court deems fit may be passed in favour of the petitioners. Cost of the writ petition may be allowed in favour of the petitioners.” 2) The brief facts leading to the present writ petition is that the respondents No.1 to 5 have made an application under Section 251 of the Rajasthan Tenancy Act, 1955 (hereinafter referred to as, “the Tenancy Act”) to the Tehsildar, Sayala for opening of 50 years old path lying in between the Khasara No.171 and 172 belonging to the writ-petitioners for access to their khatedari land situated in Khasara No.176, 178 and 188. The said application was forwarded to Patwari, Gram Panchayat Otwala to conduct an enquiry. The Patwari conducted spot inspection on 09.8.2014 and prepared his report, which was presented to the Tehsildar on 11.08.2014. The report disclosed Khasara No.171 is the Khatedari land of Kalu Singh and Heer Singh (present petitioners), who are the sons of Sawai Singh. The report also disclosed that there was an old path in between Khasara Nos.171 and 172 to reach to the land in Khasara Nos.176, 178 and 188. The said path was not recorded in the revenue records. However, the signs of existing such path was noticed in the spot inspection, which was allegedly closed by the writ-petitioners with a barbed-wire fencing. The Patwari also examined the witnesses present on the spot and drawn the map indicating the places of obstruction identifying as ‘A to B’ and operational path was marked as ‘B to C’ upto Khasara Nos.176, 178 and 188. The said old path was closed. 3) The Tehsildar after receiving the report of Patwari forwarded the entire file to the Gram Panchayat, Otwala on 12.08.2014 to take a decision in terms of the rules. The said old path was closed. 3) The Tehsildar after receiving the report of Patwari forwarded the entire file to the Gram Panchayat, Otwala on 12.08.2014 to take a decision in terms of the rules. On 05.09.2014, the Sarpanch of Gram Panchayat, Otwala sent back the file expressing the Panchayat inability to get the path open. On receipt of such file from the Gram Panchayat, Otwala, the Tehsildar, Sayala commenced the proceedings under Section 251 of the Tenancy Act and notices were issued to the writ-petitioners as well as to the respondents No.1 to 5. 4) The pleadings of the respondents No.1 to 5 show that the old path was running from northern border of Khasara No.171 and the said path had been in use for many years and the writ petitioners have closed the said path, which is 250 meters away to the fields of respondents No.1 to 5. The pleadings also show that the path from Khasara No.155 to have access to their fields of respondents No.1 to 5 was at a distance of 2 kilometer from the village. The another path from Khasara No.113 goes through the pond and in rainy season, when the water was restored, there was no access from such Khasara number’s land and it is also one kilometer away. The old access from Khasara No.171 is only 250 feet away to the respondents fields. 5) The pleadings also show that the Gram Panchayat constituted a committee to make investigation of the case and as per the Committee report, a spot-report was prepared. The said report shows that access to the Khatedari land of respondents was closed by Kalu Singh and Heer Singh (writ-petitioners) installing a barbed fencing. The writ-petitioners have not filed any pleadings except a letter, which was given to the District Collector, whereunder it has been claimed that two paths are already existing to have access to the respondents fields. However, the third path was sought to be created by the respondents. The averments in the said application, which was made to the District Collector also show that one path goes from Khasara No.113 to the fields of the respondents and other path goes through the Khasara Nos.240, 232, 202 and passes through the Khasara No.192 to reach the fields and such a land belonging to the Khatedari land of applicants’ brothers and mother. Despite such a path, a third path is being sought to be established from the own land of writ-petitioners. The Tehsildar has relied upon the investigation report submitted by the Patwari. The report shows that Khasara No.113 is a land used for public utility. There is a pond over such a land and during the rainy season when water get filled, there has been no access and the Gram Panchayat also built pond bund and it is having one kilometer distance from the boarder of Khasara No.171, whereas, the path running in between Khasara Nos.171 and 172 is at a distance of 170 meters to the Khasara No.176, to which the access was claimed. 6) The report also indicates that the path which goes to Khasara No.192 through the Khasra Nos. 240, 232 and 202 is having considerable distance from the village to reach the land of Khasara Nos.176, 177 178, 188. On account of such reasons, the Khatedar-holders had been using path in between Khasara No.171 and 172 from the village to reach their fields. Basing on the report of the Patwari, the Tehsildar ordered opening of old path in between Khasara Nos.171 and 172 upto Khasara No.188. Consequently, the application filed by the respondents No.1 to 5 has been allowed. 7) Aggrieved by the same, the writ petitioners have preferred an appeal before the Additional District Collector, Jalore. The Additional District Collector after making personal inspection found that there are three paths available on the plot to reach the khatedari land of the respondents. There is a direct recorded path available on the spot from the Khasara No.192, which directly lead to the field of respondents and another path goes through the government land, which is far away and in addition to that one more path is available to go to the respondents’ field and he found that in the light of existence of such alternative paths, the claim of the respondents with regard to existent of easement cannot be granted as it was arbitrarily claimed. Consequently, the appeal was allowed and the order of the Tehsildar was set aside. 8) The respondents-herein have preferred revision before the Board of Revenue, Ajmer. Consequently, the appeal was allowed and the order of the Tehsildar was set aside. 8) The respondents-herein have preferred revision before the Board of Revenue, Ajmer. The findings of the Board of Revenue also indicate that the Committee of ward panches constituted in the general meeting of the Gram Panchayat through the Resolution No.4 had investigated the complaint and found that the path exists and it was closed by fencing with thrones. By placing the reliance on the Patwari report, the Board of Revenue has come to a conclusion that the old path existing between Khasara Nos.171 and 172 of the writ-petitioners, which upto the Khasara No.188 and beyond and it was found that the Additional District Collector in appeal without considering such a report has arbitrarily set aside the award. Therefore, the appellate order was reversed. Aggrieved by the same, the writ-petitioners have filed the present writ petition. 9) Heard the learned counsel for the petitioners as well as the learned counsel for the respondents at length. 10) The learned counsel appearing for the writ-petitioners has contended that the report of the Patwari could not be the basis for the Tehsildar since such a report was sought on the application, which was being made by the respondents before it was sent to Gram Panchayat, which has a primary jurisdiction to deal with the grievance of the respondents. The Tehsildar instead of simply forwarding the application of the respondents, has made a fishing and roving enquiry and obtained the report and thereafter, the application along with the report was forwarded to the Gram Panchayat and directed the Gram Panchayat to take appropriate proceedings. According to the learned counsel for the writ- petitioners, such action of the Tehsildar would amount to pre- determination of lis which ought to have been left open to the Gram Panchayat, which is the primary authority to adjudicate the claim raised by the respondents. 11) The learned counsel for the writ-petitioners further contended that the Committee appointed by the Gram Panchayat has submitted the report, which is reflected from the order of Tehsildar. The findings further show that the report do not indicate the existence of easement. Only existence of path was referred. The claim set up by the respondents was that the path was being used as an easement. It is not their case that the path was earmarked path. The findings further show that the report do not indicate the existence of easement. Only existence of path was referred. The claim set up by the respondents was that the path was being used as an easement. It is not their case that the path was earmarked path. In absence of a such report from the Gram Panchayat, a pre-sought report of the Patwari could not have been basis for the Tehsildar to say that the way claimed by the respondents was old way and they have the easementary right of way. 12) Another argument of the learned counsel for the writ- petitioners is that there is nothing on record which shows that there was a collective decision of Gram Panchayat to send back the dispute to the Tehsildar for adjudication. The Sarpanch alone cannot take a decision to forward the application back to the Tehsildar and that too before 45 days, which is the maximum period, which was granted to the Gram Panchayat to dispose of the application referred by the Tehsildar. According to the leaned counsel, the Tehsildar would assume the jurisdiction to take cognizance of the application only after 45 days and not before 45 days. Therefore, any action taken on such cognizance is without jurisdiction and the same was rightly set aside by the first appellate court. The Board of Revenue simply placing the reliance on the Patwari report, which was obtained when the Tehsildar was not having jurisdiction to obtain such a report, has set aside the order of Tehsildar. Therefore, the order of Tehsildar as well as the order of Board of Revenue require to be set aside and the order of Additional District Collector requires to be restored. 13) Per contra, learned counsel appearing for the respondents has contended that the report of the Patwari as well as the report of Committee appointed by the Gram Panchayat would clearly show the existence of the path and the Tehsildar has rightly taken cognizance of the report of Patwari as well as the report of Committee appointed by the Gram Panchayat, and has rightly come to a conclusion that there was an old path, which has been claimed as an easementary path by the respondents; and rightly allowed the removal of blockade and such order was rightly confirmed by the Board of Revenue. However, the order of the Additional District Collector is contrary to the evidence on record and the same was rightly set aside by the Board of Revenue. 14) The learned counsel for the respondents also contended that the argument of the learned counsel for the writ petitioners that the decision to send back the file to the Tehsildar was a decision taken by the Sarpanch. However, according to him, such a decision was taken by the Gram Panchayat. The Gram Panchayat has forwarded back the dispute to the Tehsildar to initiate the proceedings and it is incorrect to say that when a decision was made to send the dispute back to Tehsildar, Tehsildar did not require to wait for 45 days. The period of 45 days was only a maximum time, which was granted to the Gram Panchayat to take a decision and once the Gram Panchayat has taken the decision before 45 days and it was sent back to the Tehsildar for taking further action expressing inability to remove the blockades, then the Tehsildar would assume the jurisdiction to commence the proceedings, which was rightly done by the Tehsildar and he has rightly relied upon the Committee report as well the report of the Patwari. Therefore, no fault can be found with the original authority as well as the revisional authority. He prayed for dismissal of the writ petition. 15) I have considered the rival submission advanced by learned counsel for the parties and carefully perused the orders impugned as well as material available on record. 16) In the background of the above facts, it is appropriate to refer to Section 251 of the Tenancy Act, which reads as follows:- “ 251. Rights 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 his consent, 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 of 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.” 17) From a reading of the provision of Section 251 of the Tenancy Act, it is clear that Section 251 enables a Tehsildar or a Gram Panchayat to conduct summary enquiry into the facts of such enjoyment, disturbance and order the disturbance to be removed or stopped and the applicant be allowed to enjoy the right of way or other easement or right having without consent, which was disturbed by the writ-petitioners. Sub-section 251(2) says that the orders passed under Section 251 do not debar any person from establishing such a right or easement as he may claim by a regular civil suit in a competent civil court. The original provision of Section 251 was brought certain changes by way of the Notification dt. 07.09.1982. The said notification, which takes away jurisdiction of a Tehsildar and conferred power on the Gram Panchayat, is reproduced hereunder: NOTIFICATION Jaipur, September 4, 1982. S.O.88- In exercise of powers conferred by clause (b) of section 260 of the Rajasthan Land Revenue Act. 1956 (Rajasthan Act 15 of 1956) and in supersession of Revenue (B) Department Notification No.6(41) Rev./ B/60 dated 17.6.1961, the State Government hereby directs that :- 1. The powers conferred on a Tehsildar by sub-section (1) of section 251 of the Rajasthan Tenancy Act, 1955 (Rajasthan Act 3 of 1955) for disposing of applications relating to disturbance in the actural enjoyment of a right of way or other easement or right by land holders, shall be exercised by the Village Panchayat of the village in which the land is situated. The applications received by the Tehsildar in this behalf shall be duly entered in a register to be maintained for the disposal of such applications, and thereafter, forwarded to the concerned Village Panchayat for disposal. In cases in which the Village Panchayat fails to dispose of an application within 45 days from the date of receipt by it either directly or through the Tehsildar the Villge Panchayat will cease to have any jurisdiction in the matter and the application will be forwarded to the Tehsildar having jurisdiction forthwith, who will enquire into and dispose of the application within 45 days of its receipt by him. In cases in which a Village Panchayat does not forward the application immediately after expiry of 45 days, the Tehsildar having jurisdiction shall have power to recall the application from the Village Panchayat and dispose of the same. 2. An appeal against an order passed by a Village Panchayat in such cases shall lie to the Collector of the district concerned. [No. F.5(21 )Rev./Gr.4/80/84]. [Published in Raj .Gaz.Extra Ordy. Part 4 (Ga) II, dated September 25,1982, Page 219-220. Hence effective from 25.9.1982] 18) By virtue of Notification referred above, the powers originally conferred on the Tehsildar was modified and initial jurisdiction has been given to the village Panchayat to take appropriate action. Aggrieved party either they can make an application to the Tehsildar or they can directly make an application to village Panchayat to take a decision under Section 251 of the Tenancy Act. If the application is given to the Tehsildar, the Tehsildar simply required to forward the same to village Panchayat to take a decision on the claims made by the parties. 19) The Notification further shows that if the decision is not taken by the Gram Panchayat within 45 days, the Gram Panchayat require to forward back the application to Tehsildar to proceed with it. If Gram Panchayat failed to forward back the application to take action, then the Tehsildar can suo moto call for such application and take a decision thereon. 20) In the instant case, the Tehsildar received the application from the respondents on 08.08.2014 and after receiving such an application, instead of forwarding the said application to the Gram Panchayat, which is the primarily vested with the power to take action under Section 251, has ordered in an enquiry report from the Patwari and the Patwari caused the enquiry and submitted a report reflecting that there was existence of old path and the respondents are having easementary rights and there was a blockade. After the Patwari report, the Tehsildar had sent an application along with report to the Gram Panchayat. Unfortunately, the Tehsildar instead of simply forwarding the application, had unnecessarily obtained the report and forwarded to the Gram Panchayat, which report has prejudicial effect on the decision making process of the Gram Panchayat, which is the a primary authority. After the Patwari report, the Tehsildar had sent an application along with report to the Gram Panchayat. Unfortunately, the Tehsildar instead of simply forwarding the application, had unnecessarily obtained the report and forwarded to the Gram Panchayat, which report has prejudicial effect on the decision making process of the Gram Panchayat, which is the a primary authority. 21) The orders of the Tehsildar as well as the Board of Revenue show that there was a Committee report of the Gram Panchayat, which only shows the existence of path. The Committee report do not indicate that it was an old path and the respondents have easementary rights over such a path. If such findings are there in the report then there could be some relevance of such a report. The reason is that the path which the respondents claimed is not earmarked path. Such path is over the khatedari land of the writ-petitioners. The respondents only claimed that there is an easementary right of way. This means unless Gram Panchayat comes to a conclusion apart from existence of path, the requirement of easement has primarily been satisfied from the material on record adduced by the respondents, such right has no relevance. Unfortunately, orders of the Tehsildar and the Board of Revenue do not indicate any material from the report of the Committee appointed by the Gram Panchayat that the respondents have prima facie established existence of easementary right over the way which has been found to be existing on the khatedari lands of writ-petitioners. This means the Committee report of the Gram Panchayat is silent with regard to claim of esementary right. It is not the case of the respondents that the path, which they have claimed, is earmakred path. Therefore, the Committee report of Gram Panchayat has no relevance on the decision. 22) The submission of the learned counsel for the writ- petitioners is that the file was sent back by the Sarpanch only and there was no collective decision by the Gram Panchayat. The Tehsildar order as well as the Board of Revenue order only show that the Sarpanch had sent back the report. 23) It is relevant to note the concept of Gram Panchayat and its constitution. In this regard, Sections 9 and 12 of the Rajasthan Panchayati Raj Act, 1994 is relevant to refer, which are hereunder. “Sec.9. The Tehsildar order as well as the Board of Revenue order only show that the Sarpanch had sent back the report. 23) It is relevant to note the concept of Gram Panchayat and its constitution. In this regard, Sections 9 and 12 of the Rajasthan Panchayati Raj Act, 1994 is relevant to refer, which are hereunder. “Sec.9. Establishment of Panchayat.- (1) The State Government may by notification in the Official Gazette, declare any local area, or a cantonment board constituted under any law for the time being in force to be Panchayat Circle and for every local area declared as such there shall be a Panchayat. (2) Every Panchayat shall, by the name notified in the Official Gazette, be a body corporate having perpetual succession and common seal and shall, subject to any restrictions and conditions imposed by or under this act or any other law, have power to acquire, by purchase, gift or otherwise, to hold, administer and transfer property, both movable and immovable, and to enter into any contract and shall, by the said name, sue and be sued. (3) The State Government may, at any time, after one month’s notice published in the prescribed manner either on its own motion or at the request of the Panchayat or of the residents of the Panchayat Circle, and by notification in the Official Gazette, change the name or place of office of any such Panchayat.” xxx xxx xxx “Sec.12. Composition of a Panchayat.- (1) A Panchayat shall consist of - (a) A Sarpanch, and (b) directly elected Panchas from as many wards as are determined under Sub-sec. (2) [(2) The State Government shall, in accordance with such rules as may be framed in this behalf, determine the number or wards, not being less than five for each Panchayat Circle, and thereupon so divide the Panchayat Circle into single member ward that the population of each ward is, so far as practicable, the same throughout the Panchayat Circle.” 24) From a reading of Sub-section (2) of Section 9 of the Rajasthan Panchayati Raj Act, it is clear that Panchayat is a body corporate having perpetual succession and common seal, and Section 12 indicates composition of a Panchayat. The Panchayat include Sarpanch and directly elected Panchas (Ward Members). The Panchayat include Sarpanch and directly elected Panchas (Ward Members). This means Sarpanch cannot be the sole decision maker and it should be the collective decision of the corporate body, which includes Sarpanch as well as panches. There is nothing on record which shows that the decision to send back the file to the Tehsildar prior to the 45 days was the collective decision of the Gram Panchayat. Therefore, the decision to send back the dispute prior to 45 days suffers from illegality. 25) The argument of the learned counsel for the writ- petitioners that before 45 days, the Gram Panchayat cannot send back the dispute, is misconceived. The reason is that if the decision is taken by the Gram Panchayat expressing inability to deal with the issue, it amounts to a non-decision and such a non- decision when it is forwarded prior to 45 days, the Tehsildar can take cognizance. However, in the present case, there is no material on record which shows that the Gram Panchayat has taken collective decision to send back the file before 45 days to the Tehsildar. Therefore, the decision to send back the file to the Tehsildar is not a collective decision and exercise of power before 45 days by the Tehsildar by taking cognizance of the application/dispute and taking a decision thereon is without jurisdiction. These aspects were not considered by the Tehsildar as well as the Board of Revenue. 26) Coming to the decision on merits, in the decisions of both the Tehsildar as well as the Board of Revenue, the Patwari report was made sole basis for accepting the claim of the respondents. However, the decision of Additional District Collector would show that he personally cause summary enquiry in addition to the material placed on record. The argument of the learned counsel for the petitioners that there are two other ways to reach the fields of the respondents and insisting third way by setting up easements is unwarranted and arbitrary. This argument is also unsustainable. The reason is that the existence of two alternative paths do not debar the respondents from use of easmentary right of the third way. However, when such an easementary right has been claimed, then the respondents are primarily required to establish compliance with the requirement for easements as per the Easement Act. This argument is also unsustainable. The reason is that the existence of two alternative paths do not debar the respondents from use of easmentary right of the third way. However, when such an easementary right has been claimed, then the respondents are primarily required to establish compliance with the requirement for easements as per the Easement Act. The report of the Patwari was an ex-parte report and except placing reliance on the report of Patwari, the respondents have not placed any other evidence. A serious disputed question exists with regard to existence of easement. This Court feels that it is not appropriate to leave such a question to the statutory authorities and the remedy under Section 251 of the Tenancy Act to take up such existence of easementary right of way by filing civil suit instead of summary proceedings as contemplated under Section 251 of the Rajasthan Tenancy Act. In the above facts and circumstances, this Court feels that the writ petition is required to be allowed. 27) In the result the writ petition is allowed. The impugned order dt. 16.04.2021 passed by the Board of Revenue, Ajmer and the order dt. 18.06.2025 passed by the Tehsildar, Sayla are set aside; and the order of Additional District Judge, Jalore is partly upheld and consequently, the application filed before the Tehsildar is dismissed. 28) In the circumstances, no order as to costs.