MATHUR, J. - (1.) THIS writ petition is directed against the order passed by the Board of Revenue dated 10. 2. 1981 (Ex. 5) as well as the order passed by the Revenue Appellate Authority dated 7. 11. 1978 (Ex. 4) and the order passed by the Sub-Divisional- Officer, Nohar dated 8. 9. 1977 (Ex. 3 ).
(2.) THE brief facts which are necessary for the convenient disposal of this writ petition are that the petitioner is a resident of village Phephana Tehsil and District Sri Ganganagar. He is an agriculturist by profession. He has also got khatedari agricultural land in Chak No. 4 J. S. N. THE petitioner along with his brother Girdhari and one Shri Likhma Ram son of Kesaram are the recorded Khatedar tenants of l/3rd share of agricultural land of Sq. No. 362/375 (28) Killa Nos. 1 to 10 and 12 to 14 situated in Chak No. 4 J. S. N. Malla Ram, Bharu sons of Roopa Ram by caste Suthar are the recorded khatedar tenants of 2/3rd share of this land. THE land in question is command land irrigated by Bhakra Canal Project. THE petitioner submitted that he has only mentioned the particulars of the disputed land of Sq. No. 362/375 since the proposed way is to be constructed through Killa No. 1 to 5 of this square only. He further submitted that this land was originally in the khatedari of one Daya Sukh son of Roopa Ram Suthar along with his brothers Malla and Bharu Ram. He had a Khatedari of l/3rd share and he has transferred his share by a registered sale-deed in favour of the petitioner and his real brother Girdhari and his relatives Likhma Ram son of Kesa Ram, who were thereafter recorded as Khatedar tenants in place of Daya Sukh the original Khatedar. This land was of Daya Sukh's ancestors and he was holding the same along his brothers since before the enforcement of the Rajasthan Colonisation Act, 1954 (hereinafter referred to as 'the Act of 1954') and before the advent of Bhakra Canal Project, therefore, the land in question was not a grant by way of transfer or allotment made in favour of Malla, Bharu and Daya Sukh under the provisions of the Act of 1954 or the Rules made thereunder. It is submitted that during the Chakbandi proceedings certain ways were demarcated and constructed by the Colonisation authorities according to the needs of the people and no way was proposed or constructed through the land of Sq. No. 362/375. In the year 1967 some of the villagers of village Phephana applied for the construction of a new way through the disputed land of Sq. No. 362/375 before the Revenue authorities under the Act of 1954. But the Additional Collector, Sri Ganganagar rejected the application holding that there is no provision under the Act of 1954 for demarcating a new way in place of the existing one. In the year 1976 some of the villagers filed an application before the Sub-Divisional Officer, Nohar praying that the old existing way at the spot may be cancelled and a new way from Sq. No. 3' 375 to 368/375 may be sanctioned. THE petitioner along with Bhadar son of Kesaram filed objections before the Sub - Divisional Officer against the sanction of the new way to be constructed through the petitioner's land of Sq. No. 362/375. THE Sub-Divisional Officer, Nohar after making enquiries sanctioned the demarcation of a new way through the petitioner's Khatedari land of Killa Nos. 1 to 5 of Sq. No. 362/375 as well as of the other adjoining Killa Nos. 1 to 5 of Sq. No. 363/375 which belongs to Bhadar, Likhma Ram, Nirana Ram, Hetram, Ramji Lal, Harpat Ram and some other persons including the father of the petitioner, by the order dated 8. 9. 1977. THE petitioner preferred an appeal before the Revenue Appellate Authority, Bikaner which was also dismissed by the order dated 7. 11. 1978. THEreafter the petitioner along with some other persons preferred a second appeal before the Board of Revenue. But the same was also dismissed. Hence, the petitioner has preferred this writ petition challenging all the three orders. Mr. Bishnoi, learned counsel for the petitioner submitted that the Rajasthan Colonisation (General Colony) Conditions, 1955 are not applicable to the case of the petitioner. It is submitted that the Collector or the delegated authority i. e. Sub-Divisional Officer only acquires jurisdiction under Condition No. 8 (2) read with delegation under Section 2 (1) (a) of the Rajasthan Colonisation Act but the Rajasthan Colonisation (General Colony) Conditions, 1955 are not applicable in the present case because Section 20 of the Rajasthan Colonisation Act, 1954 clearly says that the provisions of the Rajasthan Colonisation Act and the General Colony Conditions will not be applicable except to the extent mentioned in the Schedule to the Act to the Khatedars who have acquired the khatedari prior to the coming into force of the Act. Section 20 of the Act of 1954 reads as under: - "20 Special conditions applicable to certain Khatedar tenants- Notwithstan-dinganything contained in any law or in any statement of conditions issued under this Act, a tenant who has previously to the commencement of this Act acquired rights in any land to which this for the time being applies, shall in respect of such land be bound by the conditions set out in the Schedule to this Act. " A perusal of Section 20 says that the statement of conditions issued under this Act are not applicable to the tenants who have previously to the commencement of this Act acquired rights in any land to which this Act for the time being applies. But they shall be bound by the conditions set out in the Schedule to this Act. In the Schedule appended to the Act of 1954 there is no such power conferred on the Collector to grant any way through the Khatedari of the petitioner. Thus, the learned counsel contended that since the General Colony Conditions are not applicable, therefore the grant of way by the Sub - Divisional Officer was totally without jurisdiction and the order is nullity in the eye of law. Mr. Lodha, learned counsel for the respondents submitted that this objection has not been raised by the petitioner before any of the authorities. Therefore, this should not be permitted to raise at this stage. We would have entertained this objection of Mr. Lodha but for the fact that the General Colony Conditions are not at all applicable to the Khatedars by virtue of Section 20, therefore, the Sub- Divisional Officer totally lacs jurisdiction to grant any way in the Khatedari of the petitioner. This objection goes to the root of the matter and such objection can be raised at any time which goes to the root of the matter. Since the General Colony Conditions are not at all applicable to the Khatedars who have acquired khatedari rights prior to the coming into force of the Act and the General Colony Conditions framed under the Act of 1954. Therefore, the Collector/sub-Divisional Officer does not acquire any right to grant any way through the field of the petitioner who are khatedar tenants.
(3.) MR. Lodha, learned counsel has also submitted that the petitioner has no locus standi to file the present writ petition. This objection of MR. Lodha is also without any merit because we have perused the Khata Ex. 1 which has been placed on the record wherein it has been clearly mentioned that the petitioner is a khatedar tenant of Sq. No. 363/375 and the proposed way passes through this square also. Therefore, the petitioner has a right to maintain this writ petition. Thus, in this view of the matter, we are of the opinion that the order passed by the Sub-Divisional Officer, Nohar was without jurisdiction and this goes to the root of the matter. Therefore, we set aside the orders of the Sub-Divisional Officer, Nohar dated 8. 9. 1977 (Ex. 3), the order of Revenue Appellate Authority, Bikaner dated 7. 11. 1978 (Ex. 4) and that of the Board of Revenue dated 10. 2. 1988 (Ex. 5 ). In the result, the writ petition is allowed. No order as to costs. . ;