Holding

An easement of necessity is not extinguished by the vesting of acquired land free of encumbrances under Section 16 of the Land Acquisition Act, 1894.

Summary

The Himachal Pradesh State Electricity Board purchased land that, according to the sale deed, provided Shiv K. Sharma and others a right of access through a passage. After the State Government acquired the land for a sub‑station, it fenced the passage, blocking the respondents' access. The respondents sued for an injunction; the trial court dismissed the suit, but the Additional District Judge and the High Court upheld the respondents' right of passage, treating it as an easement of necessity that survives acquisition. The Board appealed to the Supreme Court, arguing that under Section 16 of the Land Acquisition Act, 1894, the land vested in the Government free of all encumbrances, extinguishing the easement. The Supreme Court held that an easement of necessity is not an encumbrance that can be extinguished by acquisition and therefore the respondents' right of passage remains, dismissing the appeal.

Issues considered

Whether an easement of necessity over land acquired under the Land Acquisition Act, 1894, is extinguished by Section 16's provision that the land vests free of all encumbrances.
Whether the respondents are entitled to a right of passage despite the acquisition and fencing of the land.

Legislation cited

Code of Civil Procedure, 1908s. 100
Constitution of Indias. 136
Land Acquisition Act, 1894s. 11, s. 16, s. 3(a), s. 3(b)

Subjects

land acquisitioneasement of necessityright of wayencumbranceSection 16injunctionspecial leaveSupreme Court

Judgment

·1

..., H.P. ST ATE ELECTRICITY BOARD AND ORS.
A
' v.
SHIV K. SHARMA AND ORS.

JANUARY 10, 2005
B
[SHIVARAJ V. PATIL AND B.N. SRIKRISHNA, JJ.]

land Acquisition Act, 1894; Ss. 3(a) and (b), 11 and 16:

Acquisition of land by State Government-Easementary right on the c
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 I 00-Constitution of India, 1950-Article D
136.
I •
Respondent Nos. I 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
E
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. ApiJellate
Court decreed the suit holding that there existed a passage from the land F
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 I I of the Land Acquisition Act and possession of the G
acquired land was taken, the land would vest absolutely in the Government
free from all encumbrances.

Dismissing the appeal, the Court

209 H
210 SUPREME COURT REPORTS [2005] I S.C.R.

A HELD: I.I. Both the Additional District Judge and the High Court .... r
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(

B 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 A

by the respondents over the land of original landlord and presently
c 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
D is dismissed. (213-B; 214-A-B-C(

Collector of Bombay v. Nusserwanji Rattanii Mistri and Ors., AIR
(1955) SC 298, relied on. ..
,
State of Himachal Pradesh v. Tarsem Singh and Ors., (2001] 8 SCC
E 104, distinguished.
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1022 of2000.
From the Judgment and Order dated 28.12.98 of the Himachal Pradesh
High Court in R.S.A. No. 434 of 1993.
F 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.
The Judgment of the Court was delivered by
G
SRIKRISHNA, J. The Himachal Prades State Electricity Board,
Shim la, 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 -4
Procedure (hereinafter referred to as 'the CPC').
H The appellant-Board purchased I 0. I0 bighas out of holding of one
H.P. STATE ELECTRICITY BOARD r. S. K. SHARMA [SRI KRISHNA, J.] 211
.., Rikhi Ram on 20.4. 1978. The sale deed specifically mentioned that the present A
\
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
B
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 quaJiers and
prevented such access to the said respondents. Respondents I to 3 filed a suit c
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 I to 3 carried an appeal before the Additional District D
Judge, Solan. The Additional District Judge raised the following points for
determination:
f •

-; "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
E
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 F
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 G
under Section I 00 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 ?" H
212 SUPREME COURT REPORTS [2005] 1 S.C.R.

A The High Court answered the question of law in favour of respondents I 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 I to 3 (original plaintiffs) could be approached
only through the land of the appellant as the other three sides of the land of
B the said respondents were surrounded by the territory of Haryana State. There
is also a concurrent finding that the sale deed (Ex.PW I/a) by which the lands
were sold by Rikhi Ram to the Appellant-Board contained a clause giving
respondents I to 3 a right of approach through the land purchased by the
appellant; that in the absence of proper evidence led by present appellants
C (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
l/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
D any interference under section I00 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 I to 3, is through the land of the
appeilant-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
E 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
F "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 Ors., [2001] 8 SCC 104 to contend
G that, even assuming respondents I 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.

H The High Court considered several judgments cited before it and drew
HP STATE ELECTRICITY llOARD 1·. S K. SHARMA [SRI KRISHNA, .I] 2 JJ
a distinction between an easement of an ordinary nature in respect of which A
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 B
Mistri and Ors., 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" C
in this section can only mean interests in respect of which a
compensation was made under s. I I 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) D
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
I ' 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 I 0 of the judgment where the court took the view:
"all rights title and interest including easementary rights stood extinguished E
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 F
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 G
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 H
214 SUPREME COURT REPORTS [2005) I S.C.R.

· A 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
B and deserves to be dismissed. The appeal is hereby dismissed. No costs.
S.K.S. Appeal dismissed.

..

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