Kailash v.

Shyoji Ram and others, SB CWP 6193/2020

Next date of Hearing: 17th September, 2021

Petitioner:
Kailash s/o Raghunath Yadav

Respondents:
1. Shyoji Ram s/o Raghunath Yadav
2. Rameshwar s/o Shyoji Ram
3. Hanuman s/o Raghunath Yadav

I. Brief Synopsis of the Case:

1. That the petitioner and respondent No 1 and 3, are real brothers, who jointly
own the land in village Dadiya, Tehsil Sanganer, Jaipur. Respondent No 2 is
the son of Respondent No 2.
2. A joint road is situated between their lands. Some obstructions were raised by
Respondents in this joint pathway. So the Petitioner filed an application under
section 251 Rajasthan Tenancy Act 1955 before the Tehsildar, Sanganer against
Respondents No. 1 and 2 and Performa Respondent No.03 for removing the
obstructions on the pathway.
3. The Tehsildar after hearing the Petitioners called for spot report from the
Patwari, and thereafter vide order dated 20.11.2007, allowed the application of
the Petitioner for removing the obstruction on the right of way.
4. The Respondents filed a Revision before the Board of Revenue against the order
dated 20.11.2007 passed by the Tehsildar. The petitioner did not appear before
the Board of Revenue. The Board of Revenue vide ex-parte order dated
11.07.2019, allowed the Revision and set aside the order dated 20.11.2007
passed by the Tehsildar on the grounds that:
a. Under Section 251 Rajasthan Tenancy Act 1955, the jurisdiction of the
first 45 days to hear the dispute related to Right of way lies with the
concerned Gram Panchayat, and in case gram panchayat fails to pass
 any order for 45 days then after 45 days the jurisdiction would lie with
the Tehsildar. For this reason, the Tehsildar should have sent the letter
to the Gram Panchayat, but by not doing so, he has gone beyond his
jurisdiction and has passed the decision himself.
b. The Tehsildar relied on the spot report by the Patwari, where it is clearly
established that the obstruction has been caused by Laxminarayan,
however, he has not been made a party to the proceedings before the
Tehsildar. Therefore, the order of the Tehsildar suffers from a material
irregularity due to non-joinder of necessary party.
5. The Petitioner has thus, filed a writ petition before the Rajasthan High Court
seeking quashing of the order passed by the Board of Revenue on the ground
that no power of Revision is available under Section 230 of Rajasthan Tenancy
Act 1955, since the Order passed under Section 251 of Rajasthan Tenancy Act
1955 is an Appealable order.

II. Relevant Legislations

A. Rajasthan Tenancy Act, 1955

Section 251

“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.
Notification
No. F. 6(41) Rev. B/60 dated June 17, 1961. In exercise of the powers conferred by clause (b)
of sub-sec. (1) of S. 260 of the Rajasthan Land Revenue Act, 1956, (Rajasthan Act No. 15 of
1956), and in supersession of this Department's Notification No. F. 6(41) Rev. B/60, dated,
the 17th June, 1960 the Government hereby directs that:—
(1) the power conferred on a Tehsilder by sub-sec. (1) of S. 251 of the Rajasthan Tenancy
Act, 1955, (Rajasthan Act No. 3 of 1955) of the disposing of application of the holder
of land disturbed in the actual enjoyment of right of way, shall be exercised, in place
of Tehsildar, by the Village Panchayat of the village in which the right of way has
been disturbed is situate; and
(2) an appeal against an order passed by a Village Panchayat in any case decided under
the power delegated to it by this notification, shall lie to the Collector of the district
concerned.”

Section 225 - Appeal from orders

(1) An appeal shall lie from the final order passed on an application on the nature
specified in the Third Schedule and from such other orders as are mentioned in Section
212 of this Act and in Section 104 of the Code of Civil Procedure, 1908 (Central Act, V
of 1908)]-

(i) to the Collector, if such order is passed by a Tehsildar,

(ii) to the 1[Revenues, Appellate Authority] if such order is passed by an Assistant

Collector, a Sub-Divisional Officer or a Collector, and

(iii) to the Board if such order is passed by a [Revenue Appellate Authority].

2[(1-A) The provisions of sub-section (1) shall apply to all suits, applications or
proceedings pending on the date of the commencement of the Rajasthan Revenue
Laws (Amendment) Ordinance, 1975 (Ordinance No. 13 of 1975)
(1-B) All pending appeals from orders other than those from which an appeal lies
under sub-section (1) shall abate on the date of the commencement of the Rajasthan
Revenue Laws (Amendments) Ordinance (Ordinance No. 13 of 1975).

(2) No appeal shall lie from any order passed in appeal under this section.

Third Schedule: Article 81. Application for decision of a dispute as to right of way
1[or other easement or right.]

Section 230

“ 230. Power of the Board to call for cases— The Board may call for the record of any case
decided by any subordinate revenue court in which no appeal lies either to the Board or
to a civil court under section 239 and if such court appears —
(a) to have exercised jurisdiction not vested in it by law; or

(b) to have failed. to exercise jurisdiction so vested; or

(c) to have acted in the exercise of its jurisdiction illegally or with material
irregularity.

Board may pass such orders in the case as thinks fit. ”

B. Rajasthan Land Revenue Act 1956

Section 2. Enactments not affected by Act –

Nothing in this Act shall be construed so as in any way of affect or restrict the
operation of the provisions of the Rajasthan Land Reforms and Resumption of Jagirs Act,
1952 (Rajasthan Act VI of 1952) [or the Ajmer Abolition of Intermediaries and Land Reforms
Act, 1955 (Ajmer Act 3 of 1955) or the Bombay Merged Territories and Areas (Jagir Abolition)
Act, 1953 (Bombay Act XXXIX of 1954) in so far as it applies to the Abu area or the Madhya
Bharat Zamindari Abolition Act, Samvat 2008 (Madhya Bharat Act 28 of 1954) in so far as
they apply to the sunel area)2 or the Rajasthan Land Summary Settlement Act, 1953
(Rajasthan Act XIX of 1953) of the Rajasthan Tenancy Act, 1955 (Rajasthan Act 3 of 1955)
or the Rajasthan Panchayat Act, 1953 Rajasthan Act XXI of 1953) or and other law or
enactment not repealed by Section 263.
Section 8. Powers of the Board –
Subject to the other provisions of this Act or to the provisions of the Rajasthan
Tenancy Act, 195 (Rajasthan Act 3 of 1955) or of any other law in force, the Board shall
be the highest revenue court of appeal, revision and reference in Rajasthan: Provided
that in all matters where there is a doubt or dispute involving the determination of the
jurisdiction of a civil or a revenue court in respect thereof, the decision of the High Court shall
be final and binding on all civil and revenue courts in 12[the State] including the Board. (2)
In addition to the powers mentioned in sub-section (1)., the Board shall exercise such other
powers and perform such other duties as may from time to time entrusted to it by the
Government or as are conferred or imposed on the Board by or under this Act or any other law
for the time being in force.

Section 9 - General Superintendence of Subordinate Revenue Courts

Subject to other provisions of this Act, the general superintendence and control overall revenue
courts and over all revenue officers shall be versed in, and all such courts and officers shall be
subordinate to the Board.

Section 260 - Delegation

1[(1) The State Government may, by notification in the Official Gazette-

(a) delegate all or any of its powers under this Act, except the power to make rules, to
the Board or 2[The Commissioner] or the Settlement Commissioner or the Director of
Land Records or a Collector, or

(b) direct that any duties imposed and powers conferred by this Act or the rules
made thereunder or by any other law for the time being in force or the rules made
under such other law or any officer or authority appointed or constituted under this
Act or the rules made thereunder 2[shall, to the exclusion of such officer or
authority, be performed] and exercised by any other lawfully appointed or
constituted officer or authority specified in the notification, whether such other
officer or authority specified in the notification, whether such other officer or
authority shall have been appointed or constituted under this Act or the rules made
thereunder or under any other law for the time being in force or the rules made
under such other law, or

(c) require the Board or any other officer to perform the duties and exercise the powers
imposed and conferred by this Act or the rules made thereunder on 2[the
Commissioner] the Settlement Commissioner or the Director of Land Records, or

(d) authorise any authority or officer lawfully constituted or appointed to delegate its
or his powers under this Act or under any other law for the time being in force, except
the power to make rules under this Act or under such other law to any other authority
of officer constituted or appointed under this Act or the rules made thereunder or
under any other law for the time being in force or the rules made under such other
law.

(2) Doubts having been expressed as the scope of the power of delegations, provided
for in this section as it stood before the 16th day of November, 1961, it is hereby
enacted for the removal and clarification of such doubt that, notwithstanding
anything contained in any judgment, order or decision of any court (Civil and
Revenue) tribunal or other competent authority and notwithstanding any defect or
omission of form, language or reference in any notifications issued by the State
Government under this section previously to the said day or any rule of law or
interpretation.

(a) all delegations of powers and duties made by the State Government under this
section before the sixteenth day of November, 1961, shall be deemed to have been
lawfully and validly made in terms of sub-section (1) as hereby amended as if such
amendments had then been made, and

(b) all notifications delegating such powers and duties, shall, until superseded,
continue to be operative and to have effect according to their tenor.}

1. Ins. by Act No. 10 of 1987 w.e.f. 31-1-1987, Pub. in Raj. Gaz. E.O. (4-A) dt. 9-4-1987,
Pages 43-50.
2. Subs, vide Ord. No. 8 of 1988 dt. 1-9-1988, Pub. in Raj. Gaz. E.O. dt. 1-9-1988, Pages
31-33.

III. Case Law Analysis

A. Whether Tehsildar has concurrent jurisdiction with gram panchayat under
Section 251?

Position Before Amendment of Section 260 of Rajasthan Land Revenue Act in 1988

1. Kalyan v. Board of Revenue, Rajasthan, Ajmer, 1984 SCC OnLine Raj 15 : AIR 1985
Raj 153
“4. The main ground on which the order of the Tehsildar dated, Jan. 12, 1984 is challenged
is that he had no jurisdiction to decide the question of the disputed rasta at all. It is submitted
that the jurisdiction of the Tehsildar under S. 251, R.T. Act, 1955 (hereinafter called the
Tenancy Act) to decide disputes as to rasta has been taken away by virtue of a Notification
issued by the State Government of Rajasthan in exercise of its powers under S. 260(1)(b)
Rajasthan Land Revenue Act, 1956 (hereinafter called the Revenue Act). The notification on
which reliance is placed by counsel for the petitioner, reads as under:
“No. F. 6(41) Rev. B/60 dated June 17, 1961. In exercise of the powers conferred by
clause (b) of sub-sec. (1) of S. 260 of the Rajasthan Land Revenue Act, 1956,
(Rajasthan Act No. 15 of 1956), and in supersession of this Department's
Notification No. F. 6(41) Rev. B/60, dated, the 17th June, 1960 the Government
hereby directs that:—
(1) the power conferred on a Tehsilder by sub-sec. (1) of S. 251 of the Rajasthan
Tenancy Act, 1955, (Rajasthan Act No. 3 of 1955) of the disposing of
application of the holder of land disturbed in the actual enjoyment of right
of way, shall be exercised, in place of Tehsildar, by the Village Panchayat
of the village in which the right of way has been disturbed is situate; and
(2) an appeal against an order passed by a Village Panchayat in any case
decided under the power delegated to it by this notification, shall lie to the
Collector of the district concerned.”
S. 260 of the Revenue Act under which the aforementioned Notification was issued by the
Government may also be reproduced for convenience of reference. It reads:
 “260. Delegation— (1) the State Government may by notification in the Official Gazette—
(a) xxxxxxxxxxxxxxx
(b) direct that any duties imposed and powers conferred by this Act or the rules made
thereunder or by any other law for the time being in force or the rules made under
such other law on any officer or authority appointed or constituted under this Act
or the rules made thereunder shall be performed and exercised by any other lawfully
appointed or constituted officer or authority specified in the notification, whether
such other officer or authority shall have been appointed or constituted under this
Act or the rules made thereunder or under any other law for the time being in force
or the rules made under such other law, or
(c)-(d) xxxxxxxxxxxxxxxxxxxxxxxx”.
5. The question which falls for determination therefore is whether the power of tehsilder
conferred on him by S. 251, Tenancy Act to decide disputes as to rasta can be taken away by
the State Government by a notification issued by it in exercise of its powers under S. 260 of the
Revenue Act. If the Legislature has conferred on the State Government a power to withdraw
the jurisdiction and powers of the Tehsildar under S. 251 of the Tenancy Act, there should be
no difficulty in answering the question in the affirmative. But it cannot be answered in the
affirmative for the simple reason that the Legislature has enacted S. 260 of the Revenue Act in
such a manner as to confer only a limited power on the State Government to authorise an officer
or authority other than the Tehsildar under S. 251 of the Tenancy Act. No power is conferred
on the State Government by S. 260 of the Revenue Act to take away the powers of the
Tehsildar vested in him by S. 251 of the Tenancy Act. The effect of the notification
issued by the State Government under S. 260 of the Revenue Act, in terms of the present
case, therefore, is that both the Tehsildar and the Panchayat have concurrent
jurisdiction to decide disputes regarding rasta. The Tehsildar gets such power directly
from the Legislature under S. 251 of the Tenancy Act. The Panchayat gets such powers
by virtue of a notification issued by the State Government as a delegate of the
Legislature. The delegate can validly operate within the strict limits of his powers and not
beyond them. S. 260 of the Revenue Act confers a limited and delegated power on the State
Government in that it may authorise a Panchayat to exercise the powers of a Tehsildar under
S. 251 of the Tenancy Act, but it does not authorise the State Government to withdraw the
statutory powers of the Tehsildar under that section. For all these reasons, I must hold that the
notification reproduced above is partly bad, but its bad portion is clearly severable from the
good portion. Now, if the words “in place of Tehsildar” occurring between the word “exercised”
and the word “by” are deleted from the said notification, it will be rid of its vice of being ultra
vires S. 251 of the Tenancy Act and S. 260 of the Revenue Act. I would accordingly hold that
the words “in place of Tehsildar” occurring in the notification issued by the State Government
under S. 260 of the Revenue Act, are ultra vires that section and S. 251 of the Tenancy Act
and therefore the notification shall be read as if these words do not occur there. The rest of the
notification is valid.
6. That being so, it follows as a matter of necessary corollary that the powers of the
Tehsildar under S. 251 of the Tenancy Act to decide disputed questions of rasta under
that section have not been taken away by the aforementioned notification issued by
the State Government under S. 260 of the Revenue Act, which has to be read minus the
words “in place of Tehsildar” as explained above. The order, dated, Jan. 12, 1984, must
therefore be held to have been passed by the Tehsildar in the valid exercise of his jurisdiction
and power under S. 251 of the Tenancy Act.
8. The mere fact that the controversy regarding the rasta in dispute is pending adjudication in
two different suits, one instituted in a civil court and the other in a revenue court is no ground
for holding that the Tehsildar should refrain from exercising his powers under S. 251 of the
Tenancy Act. The powers conferred on the Tehsildar under S. 251 of the Tenancy Act are
independent and can therefore be exercised by him as such regardless of the pendency of the
two suits in the aformentioned courts. In fact sub-sec. (2) of S. 251 itself makes it clear
that the two remedies i.e. the one under S. 251 and the other by way of a regular suit
in a competent civil court are independent of each other. The pendency of a suit will
not take away the independent jurisdiction of the Tehsildar under S. 251 of the
Tenancy Act and similarly making of an application to the Tehsildar under that
section will not debar the party concerned from filing a regular suit in a competent
civil court for the purpose of establishing his right in respect of a rasta.”

Comment: This case was from the un-amended act. After amendment, in 1988,
however, it seems that the Government has the power to order that, the power is
exercised by Gram Panchayat, to the exclusion of Tehsildar, due to the insertion of the
words “shall, to the exclusion of such officer or authority, be performed” in Section
260 of Rajasthan Land Revenue Act, 1956.

Position After Amendment of Section 260 of Rajasthan Land Revenue Act in 1988:

2. Kanhaiya Lal v. Board of Revenue & Ors. 1 (1989) WLN (Rev) 495, Rajasthan
High Court:

“ 6. In our opinion, the said contention of Shri Mehrish must be accepted because in view of
the Notification dated September 4, 1982, the Gram Panchayat has the exclusive
jurisdiction to deal with an application submitted Under Section 251(1) of the
Rajasthan Tenancy Act for a period upto 45 days from the date of receipt of the said
application and after the expiry of the said period of 45 days, the Gram Panchayat
ceases to have the jurisdiction to deal with it and such application can be dealt with
only by the Tehsildar having the jurisdiction. The order (Annexure-1) dated 25th
December, 1982 passed by the Gram Panchayat, Mandap shows that the application of the
respondent No. 4 was submitted on 30th October, 1982. The period of 45 days from the date of
submission of the application expired on 14th December, 1982. The Gram Panchayat had
ceased to have jurisdiction to deal with the application after 14th December, 1982. The order
dated 25th December, 1982 was passed by the Gram Panchayat Mandap at a time when it had
ceased to have jurisdiction to deal with the matter. The learned Member of the Board of Revenue
has proceeded on the basis that the Tehsildar as well as the Gram Panchayat had concurrent
jurisdiction to deal with the matter. That was the position prior to the Notification dated
September 4, 1982 after the issuance of the said Notification the jurisdiction of Gram
Panchayat was exclusive for 45 days from the date of receipt of the application and thereafter
the exclusive jurisdiction on deal with an application was of the Tehsildar.”

Conclusion: Therefore, from the above, it seems that only Gram Panchayat has
jurisdiction for the first 45 days. The Tehsildar has jurisdiction only where Gram
Panchayat has failed to pass an order for 45 days. Therefore, the order passed by the
Tehsildar in the instant case would be without any jurisdiction, since the order has
been passed without the parties first approaching the Gram Panchayat.
B. Whether the Board of Revenue has power of Revision Under Section 230 of
Rajasthan Tenancy Act 1955, against order passed by the Tehsildar under Section
251?

Surja Ram v. State of Rajasthan & Ors. - Rajasthan High Court, (S.B.CIVIL WRIT
PETITION NO.8249/15) Date:- 07.08.2015.

“ 3. If the petitioner's enjoyment of right to way is disturbed by the respondents, nothing

prevented him from making an appropriate application under Section 251 of the Act before the
Tehsildar concerned, who is empowered to pass an appropriate order to remove the disturbance
so created and restore such enjoyment after making a summary inquiry into the fact of such
enjoyment. There is no reason as to why the petitioner should seek the directions from this
court to treat the representation alleged to have been made by him as an application preferred
under Section 251 of the Act. Moreover, if the concerned revenue authorities are not
discharging their duties appropriately, it is always open for the petitioner to
approach the Board of Revenue which exercises control over all revenue courts and
revenue officers by virtue of provisions of Section 9 of the Rajasthan Land Revenue
Act. 1956.

Conclusion

Since the order passed by the Tehsildar was without any jurisdictional basis, the Board
of Revenue could have validly exercised its power of Revision under Section 230 of
the Rajasthan Tenancy Act, 1955 read with Section 9 of Rajasthan Land Revenue Act,
1956.

IV. Executive Summary on the Merits of the Writ

An analysis of the provisions of the Rajasthan Tenancy Act 1955 and Rajasthan Land
Revenue Act 1956, along with case laws, indicate that the Tehsildar’s order was infact
without jurisdiction, since the power under Section 251 of Rajasthan Tenancy Act 1955,
(order for clearance of an obstruction of right of way) in the first instance lies with the
Gram Panchayat. If the application remains pending before the Gram Panchayat for
more than 45 days, only then does the Tehsildar have jurisdiction.
Thus, it seems that order by the Tehsildar dated 20.11.2007 was without any
jurisdiction. Therefore, the Respondent had rightly approached the Board of Revenue
in Revision.
Prima facie, an order under Section 251 of Rajasthan Tenancy Act 1955 cannot be
subject to Revision, due to the operation of Section 230 of Rajasthan Tenancy Act 1955
which provides that power of Revision lies only against orders/judgements against
which there is no provision of Appeal. However, Section 225 read with Article 81,
Schedule III of Rajasthan Tenancy Act 1955 enumerate that an Order under Section
251 would be appealable.
In this case, the Tehsildar has wrongly exercised jurisdiction under Section 251,
therefore parties can approach Board of Revenue in Revision instead of Appeal, since
as per Section 9 of the Rajasthan Land Revenue Act 1956, the Board of Revenue has
the general power of superintendence over all subordinate revenue courts.

V. Steps that can be taken:

1. The Petitioner can approach the Gram Panchayat under Section 251 of
Rajasthan Tenancy Act 1955, after withdrawing the writ and seeking liberty
from the High Court. However, if there’s an existing status quo/stay order from
the civil courts, the Gram Panchayat would not be able to exercise jurisdiction.
If there’s no such status quo/stay order, then mere pendency of the matter
before civil court will be no bar to approach the Gram Panchayat under Section
251 of Rajasthan Tenancy Act 1955. This situation has been affirmed by the
court in the case of Kalyan v. Board of Revenue, Rajasthan, Ajmer, 1984 SCC
OnLine Raj 15 : AIR 1985 Raj 153. It is pertinent to note that Laxminarayan
should be made a party to the subsequent proceedings, since he is a
necessary party to the case.
2. If there’s a status quo/stay order from the Civil courts, then the Petitioner has
no other option but to continue the case before the Civil courts.