H.P. State Electricity Board & Ors Vs. Shiv K. Sharma & Ors
 Insc 21 (10
V. Patil & B.N. Srikrishna Srikrishna, J.
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
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 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.
1 to 3 carried an appeal before the Additional District Judge, Solan. The
Additional District Judge raised the following points for determination:
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?
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 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.
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
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.
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.
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
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.
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.
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.
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 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 :
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.
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.
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
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.