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Land Acquisition Act, 1894; Ss. 3(a) and (b), 11 and 16: Acquisition of land by State Government-Easementary right on the ground of necessity-Availability of-High Court rightly drew a distinction between an easement of an ordinary nature for which compensation could be claimed and an easement of necessity in respect of which right of passage could not be extinguished by reason of acquisition, hence justified in granting right of passage to the claimant both on principle and precedent-Civil Procedure Code, 1908-Section 100-Constitution of India, 1950-Article 136. espondent Nos. 1 to 3 had purchased certain portion of land belonging to `R’. The sale deed specifically mentioned that respondent-vendees would have access to their land through a passage from the remaining part of the land of the vendor, which was later acquired by the Government of Himachal Pradesh. The State Government blocked off the passage by a barbed wire fencing, thereby preventing respondents’ access to their land. Aggrieved, respondents filed a suit for issuing injunction against the appellants. Suit was dismissed by the Trial Court. Appellate Court decreed the suit holding that there existed a passage from the land acquired by the State Government to the land of the respondents and they had no other passage to their land. Appeal against this order was dismissed by the High Court. Hence the present appeal. It was contended by the appellants that once an award has been made under Section 11 of the Land Acquisition Act and possession of the acquired land was taken, the land would vest absolutely in the Government free from all encumbrances. =Dismissing the appeal, the Court HELD: 1.1. Both the Additional District Judge and the High Court have concurrently held that the only approach available to respondent Nos. 1 to 3, is through the land of the appellant and as such they had a right to approach their land as claimed by them and the appellant had no right to obstruct the approach by putting up a barbed wire fencing. [212-E] 1.2. The High Court 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, a right of passage, and held that right of passage by way of necessity, as enjoyed by the respondents over the land of original landlord and presently acquired by the appellant, was not extinguished by reason of acquisition. In the peculiar facts and circumstances of the case, 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. The present case is not a fit case to be interfered with in exercise of the jurisdiction under Article 136 of the Constitution. Hence, the appeal is dismissed. [213-B; 214-A-B-C] Collector of Bombay v. Nusserwanji Rattanji Mistri and Ors., AIR (1955) SC 298, relied on. State of Himachal Pradesh v. Tarsem Singh and Ors., [2001] 8 SCC 104, distinguished. Rakesh Dwivedi and Naresh K. Sharma for the Appellants. A.V. Palli and Mrs. Rekha Palli for the Respondent Nos. 1-3. J.S. Attri for the Respondent No. 4.

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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  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 
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 
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.

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