Deva Ram And Ors vs Mangu Ram And Ors

Heard learned counsel for the parties. Perused the material available on record.

Facts in brief are that the SDO, Degana, vide order (Annexure-6) dated 08.06.2016, accepted the application filed by the private respondents herein under Section 251A of the Rajasthan Tenancy Act, 1955 (hereinafter referred as 'the Act of 1955') and directed opening of a new way through the fields of the petitioners. The order passed by the SDO, Degana was affirmed by the Revenue Appellate Authority in an appeal preferred by the petitioners by order (Annexure-9) dated 04.07.2017. The petitioners assailed these orders by filing a revision petition before the Board of Revenue which was rejected vide order (Annexure-11) dated 16.11.2018. The Writ Petition No.18896/2018 preferred by the petitioners against these orders stands rejected by learned Single Bench of this Court vide its judgment dated 19.12.2018 which is assailed in this Special Appeal (Writ). Alongwith the Special Appeal, learned counsel for the appellants has filed an application for taking on record additional documents which shall be considered later.

The fervent contention of Shri Thanvi, learned counsel representing the appellants-petitioners was that the learned Single Bench as well as the Courts below failed to appreciate the fact that the application under Section 251A of the Act of 1955 could not be maintained where the prayer was for opening an alternative way. The said provision only comes into play when no way is available to the applicant and relief is sought for opening a new passage. He urged that it is an admitted position that the respondents had available to them, an alternative route through which, they could approach the agricultural fields in question, and as such, the contention of Shri Thanvi was that the Courts below were totally unjustified in taking recourse of the provision of Section 251A of the Act of 1955 while directing opening of alternative way in favour of the respondents. He further urged that the petitioners are absolutely bonafide in their endeavour and they are ready to offer an alternative way to the respondents and for this purpose, the additional pleadings have been taken in the appeal and these pleadings are supported by the additional documents sought to be taken on record through the interlocutory application. He thus vehemently and fervently contended that the orders passed by the courts below as well as the judgment rendered by the learned Single Bench of this Court in writ petition are illegal, arbitrary and perverse and hence, the same deserve to be struck down.

Per contra, Shri R.S. Choudhary, learned counsel representing the respondents vehemently opposed the submissions advanced by the petitioners' counsel. He drew the Court's attention to the Fard Mauka prepared by the Tehsildar, Degana on 11.09.2017 whereby, the order passed by the SDO, Degana has been executed and a 20 feet way has been opened through the Khasras in question. He urges that despite available opportunity, the petitioners made no effort to challenge these proceedings either in the writ petition or in the appeal and rather, concealed this material fact. He submits that as a matter of fact, the appeal is liable to be dismissed on this solitary ground that the petitioners concealed this material fact from the court while filing the writ petition as well as the appeal. He further urged that the alternate way which was available to the respondents, was about 7 kms. long whereas the new way which has been provided to them under the order passed by the SDO, Degana is just 2 kms. long. He urges that the import and purview of statutory provision under Section 251A of the Act of 1955 is to ensure that an efficacious way is provided to everyone for approaching their agricultural field. If the way is very circuitous long or full of obstacles, it cannot be considered to be a passage at all. He thus urged that no interference is called for in the well considered findings of facts recorded by the courts below as well as learned Single Bench of this Court in the impugned judgment.

We have given our thoughtful consideration submissions advanced at bar and have gone through the material available on record.

At the outset, we may state that the petitioners while filing the writ petition deliberately concealed from the Court the fact that the order passed by the SDO under Section 251A of the Act of 1955 had already been executed on 11.09.2017. If at all, ignorance was a plea of the petitioners before the learned Single Bench, then without any doubt, they were required to mention this fact in the memorandum of the special appeal. If at all, they intended to question the validity of the execution proceedings undertaken by the SDO on 11.09.2017 whereby, the way was opened then, the same had to be assailed before the learned Single Bench. Thus, we are of the firm opinion that the petitioners have not approached this Court with clean hands and rather are guilty of concealing material facts from the Court. The fervent plea of Shri Thanvi that powers under Section 251A of the Act of 1955 can only be exercised for directing opening of a fresh way is not at all tenable because, if the passage available to the tenant on a revenue land is very circuitous, full of obstacles, etc. then, without a doubt, the revenue authorities authorized by law would be justified in exercising powers under Section 251A of the Act of 1955 so as to ensure that proper way is provided to such a tenant/tenants. The petitioners never made any endeavor before the learned Single Bench that they were ready to offer a suitable alternate way to the respondent and thus, they cannot be allowed to take this new plea at the appellate stage. Otherwise also, for considering the offer of the petitioners, this Court would have to delve into disputed questions of facts which exercise, undoubtedly is not permissible in exercise of the extraordinary writ or appellate jurisdiction of this Court.

Having regard to the entirety of the facts and circumstances as available on record, we are of the firm opinion that the impugned judgment passed by the learned Single Bench and so also the orders passed by the courts below do not suffer from any illegality, irregularity or perversity whatsoever warranting interference by this Court in this appeal.

Hence, the instant appeal fails and is hereby dismissed.