IQBAL SINGH Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THE petitioner through this writ petition prayed that the order dated 7.9.90 (Annex. 8) passed by the SDO (Revenue), Hanumangrah under Clause 8(2) of the Rajasthan Colonization (General Colony) Conditions, 1955 (hereinafter referred to as 'the Colony Conditions, 1955') be declared a nullity; that the action taken by the Tehsildar (Revenue), Hanumangrah (Respondent No. 3) vide proceedings dated 10/9/90 (Annex. 12) as well as the action taken by the respondents No. 2 and 3 on 14.9.90 be quashed and they be restrained from interfering in his cultivatory possession on his agricultural land comprising Kila Nos. 3, 4, and 5 of Square No. 59/283 of Chak No. 1 LGW of Hanumangarh Tehsil.

(2.) BRIEFLY the relevant facts are that the petitioner and his brother Narayan Singh (respondents No. 17) are the recorded khatedars of agricultural land of Square No. 59/283(65) situated in Chak 1 LGW of Panchayat Dabli Maulvi Vas alongwith other agricultural holdings. The agricultural lands in Chak 1 LGW are irrigated by the Canal. The respondent No. 2 by his order dated 5.4.1983 (Annex. 1), which was subsequently amended by his order dated 18.2.1984 (Annex. 2) had held that in fact no 'Rasta' (Passage) was in use through Killa Nos. 1 to 5 of Square No. 58/283, 59/283 and 60/283 and that the Settlement Department had no authority to grant the said passage. He had accordingly ordered for cancelling the entries pertaining to the said passage in the revenue record. However some of the residents of the Chak 1 LGW filed an application dated 19/11/86 before the respondent No. 2 for recalling his orders Annexs. 1 and 2. The said application was numbered as case No. 137/87, wherein notices were issued to Narayan Singh and the next date fixed in the said case was 10.10.90. It appears that on an application filed by Ramlal son of Net Ram, the SDO inspected the site on 18.8.90. He partly heard the arguments, which were not concluded and the case was fixed on 20.9.90. As per order sheet Annex. 3, it appears that on 17.7.90, some villagers of Chak 1 LGW also filed an application Annex. 4 alleging that Sri Ram Naik had closed their way passing through Khasra Nos. 1 and 10 of Pillar No. 56/284, which was in use for last more than 30 years and prayed that the said passage be opened. Thereupon, the Sarpanch alongwith Panchas inspected the site and found that the said passage was recently closed. The Gram Panchayat, therefore, requested the SHO, Hanumangarh for taking necessary action. Thereupon, the SHO, Hanumangarh after necessary enquiry filed a complaint under Section 133 CrPC in the Court of SDM Hanumangarh, who passed a conditional order against Sri Ram directing him to open the said passage immediately and to show cause. The Gram Panchayat, Dabli Rathan also filed an application dated 10.5.90 (Annex. 6) under Clause 8(2) of the Colony Conditions, 1955 before the respondent No. 2, alleging that the villagers of Chak 1. LGW used to pass through Kila No. 1 of Pillar No. 57/284 for last 25 -30 years, which has been recently closed by the non -applications belonging to Nayak Community described in the said application. The Gram Panchayat requested /recommended that a new way passing through Kila Nos. 5, 6 and 15 of Pillar No. 57/284 recorded in the khatedari of the said non -applicants be granted so that the villagers may reach the Madi of Dabli Rathan and Panchghar Hqr. etc. A resolution passed by the Gram Panchayat on 16/7/90 (Annex. 7) was also enclosed with the said application. On an application filed by the respondents No. 4 to 16, the respondent No. 2 inspected the site on 18.8.90 and by his impugned order dated 7.9.90 (Annex. 8) purporting to hare panel in exercise his power under Clause 8(2) of the Colony Conditions, 1955 sanctioned a passage through Square Nos. 58/283 and 59/283 adjacent to the boundary line of Square Nos. 58/283 and 59/283 without giving any notice to the petitioner or Narayan Singh (respondent No. 17). He also sanctioned another passage through Kila Nos. 1 and 10 of Square No. 57/284 and directed the Tehsildar (respondent No. 3) to get the aforesaid sanctioned passages opened on the spot and to make necessary entries in the revenue records. It may also be mentioned here that prior to the application dated 7.9.90 filed by the respondents No. 4 to 16, some of the respondents had also earlier filed an application before the Tehsildar under Section 251 of the Rajasthan Tenancy Act, 1955 (in short 'the Act, 1955') for opening the passage, who by his order dated 28.7.90 (Annex. 10) had dismissed the same observing that petitioner's crops were standing on Killa Nos. 3, 4 and 5 of Pillar No. 59/283 and that in the revenue record, the disputed passage passing through Pillar No. 59/283 had already been cancelled by the SDO in the year 1983.

(3.) IT may be mentioned here that 8th and 9th Sept.,90 were holidays being second Saturday and sunday. It is the case of the petitioner that the respondents No. 2 and 3 were served with the stay order dated 10.9.90 (Annex.ll) passed by the R.A.A. on the same day. As per order sheet Annex. 12, it appears that the Tehsildar (respondent No. 3) went to the spot on 10.9.90 and found that in Killa Nos. 3, 4 and 5 of Pillar No. 58/283 of Chak 1 L.GW, petitioner's crops of 'Narma' (cotton), 'San' (Jute) and 'Gawar' were standing. He assessed the value thereof for Rs. 1880/ -. The Tehsildar directed that the said assessed amount of Rs. 1880/ - be got deposited by the villagers in the Govt. Treasury. He also directed the Patwari Halka to get the sanctioned passage opened. On the same day after receipt of the stay order Annex.ll, the Tehsildar respondent No. 3 again drew another order sheet Annex. 13, wherein he directed that the copy of the said stay order be sent to the Patwari Hakla and intimation be sent to the SDO for further directions informing that the sanctioned way has been got opened on 9.9.90.