H.P. STATE ELECTRICITY BOARD AND ORS. versus SHIV K. SHARMA AND ORS.

Citation: [2005] 1 S.C.R. 209 · Decided: 10-01-2005 · Supreme Court of India · Bench: SHIVARAJ V. PATIL · Disposal: Dismissed

Judgment (excerpt)

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' 
... , 
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 
D 
Procedure Code, 1908-Section I 00-Constitution of India, 1950-Article 
136. 
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Respondent Nos. I to 3 had purchased certain portion of land 
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belonging to 'R'. The sale deed specifically mentioned that respondent-
vendees would have access to their land through a passage from the E 
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. ApiJellate 
Court decreed the suit holding that there existed a passage from the land F 
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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 
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under Section I I 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 
209 
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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. 
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The Judgment of the Court was delivered by 
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 
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Procedure (hereinafter referred to as 'the CPC'). 
H 
The appellant-Board purchased I 0. I 0 bighas out of holding of one 
\ .., 
f • 
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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 
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 lan

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