Hon'ble BALIA, J. - (1.) -
(2.) THE petitioners are the Khatedars of land in Square No. 54 and 55 Killas No. 1,2,4,9 and 10 in Square No. 61 of Chak 23-HMH, Tehsil-Hanumangarh. THE Collector vide his Order dated November 17, 1971 (Annexure/1) sanctioned a way in favour of the petitioners through the land situated at Stone No. 100/291 parallel to canal for going to aabadi of Chak 23-22 HMH. In pursuance of the said Order the way was opened and mutation was made in the revenue-records. THE land admeasuring 5 Bighas situated at No. 100/291 at Chak No. 23 HMH was allotted to respondents No. 3 and 4 in December 1982. On June 17, 1983 on behalf of respondents No.3 and 4 and application was moved before the S.D.O. Hanumangarh alleging that the present petitioners, by securing cancelling of already existing way have got. a new way sanctioned in their favour through their land and has opened its way on June 12, 1983. They prayed that the newly opened way be closed. In reply to the said application it was stated that the petitioners had got the way opened through the land in dispute long ago vide Order dated November 17, 1971 passed by the Collector, Sri-Ganganagar, who was competent authority in this regard and the way is in existence since then. After obtaining the allotment of land, through which the way existed in his favour, the applicants-respondents No. 3 and 4 had cultivated the same, partly blocking the way, therefore, on June 12, 1983, the blocked way was got opened. The petitioners also raised objection about the validity of allotment of the land to respondents No. 3 and 4 with which we are not presently concerned. The S.D.O. by his Order dated September 17, 1983 held that the disputed way was sanctioned in the year 1971 and exists on the site whereas the applicants respondents No. 3 and 4 were allotted the land in question in December 1982 and therefore, the applicant's have closed the way. On June 12, 1983, the already sanctioned way was reopened. In view of these findings, the application of the respondents No. 3 and 4 was rejected vide Order dated September 17, 1983 (Annexure/6 ). The appeal against the Order dated September 17, 1983 (Annexure/6) was rejected by the Revenue Appellate Authority, Bikaner vide its Order dated March 24, 1984 (Annexure/7.)
(3.) ON further Revision by the respondents No. 3 and 4 before the Board of Revenue, the Board set aside the Orders dated September 17, 1983 and March 24, 1984 (Annexures 6 and 7 respectively), and allowed the revision by holding that the object of the Colony Rules is to make the fields 'square' and it is contrary to the object of the Colony Rules to divide the land by providing way through it. It was also held that the Order dated September 17, 1971 sanctioning the way through the field in dispute is not binding on the responding No. 3 and 4. It also presumed that from the fact that the land in dispute, through which the way existed, was allotted to the applicants-respondents, therefore, the said way must have been declared as Gair Mumkin and only thereafter, the same may have been allotted. However, it did not pass any order about allowing the application or how to proceed with the application. Aggrieved with the aforesaid Order of the Board dated March 21, 1991 (Annexure/8), the petitioners have approached this Court under Article 226 of the Constitution of India. So far as the basic facts are concerned, it is undisputed that the way was sanctioned in favour of the petitioners on November 17, 1971 by the Collector, Sri-Ganganagar, and the land in dispute, through which the said sanctioned way was allowed to pass was allotted in favour of respondents No. 3 and 4 in December 1982. ;