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CASE NO.: Appeal (civil)  1022 of 2000

PETITIONER: H.P. State Electricity Board & Ors.

RESPONDENT: Shiv K. Sharma & Ors.

DATE OF JUDGMENT: 10/01/2005

BENCH: Shivaraj V. Patil & B.N. Srikrishna

JUDGMENT: J U D G M E N T  

Srikrishna, J.

                The Himachal Prades State Electricity Board, Shimla,  challenges by this appeal the judgment of the High Court of  Himachal Pradesh dismissing its second appeal under Section  100 of the Code of Civil Procedure (hereinafter referred to as ’the  CPC’).  

       The appellant-Board purchased 10.10 bighas out of holding  of one Rikhi Ram on 20.4.1978. The sale deed specifically  mentioned that the present respondents 1 \026 3  shall have access to  their land from the land of the seller, Rikhi Ram. On 29th March,  1981 the State Government acquired an area of 41.06 bighas of  land for the public purpose of construction of 60 KW sub-station  at Barotiwala.  The acquired land included  the remaining land of  Rikhi Ram from whom respondents 1 to 3 had purchased the  land.  After the acquisition of the land, the entire property  acquired for the benefit of the appellant was fenced off  by  barbed wire. An electric sub-station and living quarters for the  employees of the appellant were also constructed thereupon.  It  appears that the appellant blocked off the passage being used as  access to the land of the respondent which passed through the  residential quarters and prevented such access to the said  respondents.  Respondents 1 to 3 filed a suit before the sub-judge  Nalagarh for a mandatory injunction ordering the appellant- Board  to remove the barbed wire blocking access to their land  and for a permanent injunction to restrain the appellant in any  manner to obstruct the access to their land. The trial court  dismissed the suit.  

Respondent 1 to 3 carried an appeal before the Additional  District Judge, Solan.  The Additional District Judge raised the  following points for determination: "1.     Whether the suit of the plaintiffs is liable to be  dismissed on account of non-proof of the map  filed with the plaint, as held by the learned Trial  Court? 2.  Whether the plaintiffs have the right by way of  easement of necessity or as purchasers from Rikhi  Ram to pass through the land of the defendants  through the passage shown in the site plan ?

       The learned Additional District Judge decided both the  points in favour of the said respondents. He also held that the  evidence on record proved the existence of a path from the land

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purchased by the appellant-Board to the lands of the said  respondents and that they had no other approach from Haryana  side. In view thereof, the Additional District Judge allowed the  appeal and decreed the suit.  The appellant carried a regular second appeal under Section  100 of the CPC before the High Court. The High Court  considered the following substantial question of law:

"Whether the right of  respondents-plaintiffs to  pass through the acquired land for reaching  Nalagarh-Barotiwala-Kalka road by way of  necessity was encumbrance which stood  extinguished ?"

The High Court answered the question of law in favour of   respondents 1 to 3 and dismissed the second appeal. Hence, this  appeal by special leave.         Both the Additional District Judge  and the High Court  have concurrently held that the land of respondents 1 to 3   (original plaintiffs) could be approached only through the land  of the appellant as the other three sides of the land of the said  respondents were surrounded by the territory of Haryana State.   There is also a concurrent finding that the sale deed (Ex.PW  1/a) by which the lands were sold by Rikhi Ram to the  Appellant-Board contained a clause giving respondents 1 to 3 a  right of approach through the land purchased by the appellant;  that in the absence of proper evidence led by present appellants  (original defendants) by producing the relevant record, adverse  inference had to be drawn to hold that fencing was put in the  year 1986  as   claimed by the plaintiffs; that the trial court was  not right in holding that the map (Ex.PW 1/o) was not approved  and, therefore, the claim of the respondents-plaintiffs cannot be  accepted.  The High Court considered  the findings of facts  recorded by the Additional District Judge and held that these  findings did not call for any interference under section 100 of  the CPC in the second appeal. Both the Additional District  Judge and the High Court have concurrently held that the only  approach available to respondents 1 to 3, is through the land of  the appellant-defendant and as such they had a right to approach  their land as claimed by them and the appellant-defendant had  no right to obstruct the said approach by putting up a barbed  wire fencing.         It was argued before us, as before the High Court, that by  reason of section 16 of the Land Acquisition Act, 1894  (hereinafter referred to as ’the Act’), once an award has been  made under section 11 of the Act and possession of the acquired  land taken, the land would vest absolutely in the Government  "free from all encumbrances".  Our attention was also drawn to  the definition of  "land" in section 3(a) and "person interested"   in section 3(b) of the Act.         Reliance was also placed on a judgment of this Court in  State of Himachal Pradesh v. Tarsem Singh and Others ((2001)  8 SCC 104) to contend that, even assuming respondents 1 to 3  had a right of way by easement over the land of Rikhi Ram,  which was purchased by the appellant, the said land having  been acquired under section 16 of the Act stood vested in the  State Government absolutely and free from all encumbrances   including such easementary right.         The High Court considered several judgments  cited before  it  and drew a distinction between an easement of an ordinary  nature in respect of which compensation could have been  claimed in the land acquisition proceedings and an easement of  necessity like a right of passage and held that right of passage  by way of necessity, as enjoyed by the respondents-plaintiffs

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over the land of Rikhi Ram and now acquired by the appellant- defendants, was not extinguished by reason of acquisition. The  High Court relied on the observations of this Court made in  Collector of Bombay v. Nusserwanji Rattanji Mistri and others.  (AIR 1955 SC 298), wherein it is observed thus : "Under  Section  16, when the Collector  makes an award "he may take possession of the  land which shall thereupon vest absolutely in the  Government free from all encumbrance". The  word "encumbrance" in this section can only  mean interests in respect of which a compensation  was made under s.11  or could have been  claimed."

       This judgment of Collector of Bombay (supra) was a  judgment by a Bench of three learned Judges of this Court.  Learned counsel for the appellants drew our attention to the  judgment in State of Himachal Pradesh (supra) rendered by a  Bench of two learned Judges and contended that this judgment  clearly holds that the phrase "free from encumbrances" used in  section 16 of the Act is wholly unqualified and would include in  its compass every right including an easementary right which  affects the land. He particularly drew our attention to Paragraph  10 of the judgment where the court took the view: "all rights  title and interest including easementary rights stood  extinguished and all such rights title and interest vested in the  State free from all encumbrances."          In the first place, it is difficult for us to read the judgment  in Tarsem Singh case (supra) as taking a view contrary to and  differing from the law laid down by a larger Bench in Collector  of Bombay (supra). Secondly, we notice that the decision in  Tarsem Singh (supra) is not in respect of an easementary right  arising out of necessity. There does not seem to be any  discussion on the said aspect of the matter in this judgment. The  view taken in Collector of Bombay (supra), therefore, appears  to hold the field, particularly where the nature of easementary  right claimed is not capable of being evaluated in terms of  compensation and arises out of sheer necessity.          In the peculiar facts and circumstances of the case,  therefore, the distinction drawn by the High Court  about non- extinguishment of the right of easement arising out of necessity  appears to be justified both on principle and precedent.  In any  event, we do not think that the present is a fit case where it is  necessary for us to go deeper into this larger issue of law for we  are satisfied that the judgment of the High Court  under appeal  is not one which is required to be interfered with in exercise of  our jurisdiction under Article 136 of the Constitution.          For all these reasons we are of the view that the appeal  has no merit and deserves to be dismissed. The appeal is hereby  dismissed. No costs.