STATE OF KERALA v. GOPINATHAN NAIR — 1975 DIGILAW 65 (KER)

Judgment :- 1. An interesting point of law arises for consideration in this second appeal. Property comprised in R.S. No. 84/B is a residential paramba of the plaintiff's tavazhi. The approach to this paramba from the nearby Panchayat road is through a pathway marked Al in the Plan, Ext. Cl, filed by the Commissioner appointed in the case. That pathway and the plot marked A lying immediately east of it are included in R.S. No. 85/2. The Panchayat road lies east of these plots. The portion of Sy. No. 85/2 lying west of this Panchayat road was acquired for a public purpose, viz., for the purpose of a play ground for school children. Some time before suit the 1st defendant State wanted to construct a compound wall on the north and west enclosing plots A and Al. In the plot A the 1st defendant has constructed a building for the A.E.O. office. The 2nd defendant who is the contractor for the construction of the compound wall collected some materials very near the pathway marked Al and began to obstruct the pathway. So the plaintiff filed the suit for a declaration that he has got an easement right over the portion marked Al for a pathway to his house in R.S. No. 84/3B lying on the north-west of plot Al. He also prayed for an injunction restraining the defendants from interfering with this pathway. The defendant State denied that the plaintiff had any easement right along the portion marked Al. It was also contended that even if he had any such easement right, with the acquisition of the entire portion of Sy. No. 85/2 lying west of the Panchayat road the same has been extinguished. The trial court found that the only approach to the plaintiff's house from the Panchayat road is through the pathway marked Al in the Plan. That court further found that the plaintiff has established a right of easement over that plot. The lower appellate court also found that plaintiff has no other right of way to his house except through this pathway. That court further found that the plaintiff's property and the property acquired once upon a time belonged to the same owner and the plaintiff has an easement of necessity to use the pathway to reach the road. The lower appellate court also found that plaintiff has no other right of way to his house except through this pathway. That court further found that the plaintiff's property and the property acquired once upon a time belonged to the same owner and the plaintiff has an easement of necessity to use the pathway to reach the road. Though the right of easement was thus upheld by the lower courts they differed on the right of the plaintiff to ask for declaration of an easement right and for injunction. The trial court found that with the acquisition by the State of the servient tenement under the Land Acquisition Act all the rights of the plaintiff for an easement have been extinguished. According to that court, the property acquired vested in the Government free of all encumbrances which includes the right of easement claimed by the plaintiff. But, the lower appellate court held that under S.41 of the Easements Act an easement of necessity will be extinguished only when the necessity ceases and the acquisition under the Land Acquisition Act will not extinguish this easement of necessity. Consequently the plaintiff was given a decree restraining the defendants from interfering with that right of way. This second appeal is filed by the State in these circumstances. 2. It is not quite clear from the records whether the property claimed by the plaintiff and that acquired by the State originally belonged to the same owner and whether by separate transactions from the original owner they vested in two different persons. Hence, it is doubtful whether the plaintiff can claim an easement of necessity over the plot marked Al for a pathway. But, that is immaterial, for, the plaintiff has satisfactorily established an easement right over this plot by his user as of right for more than the prescribed period. This right is not seriously disputed by the appellant and no specific ground is taken in the memorandum of appeal challenging this finding also. So, we have to proceed on the basis that the plaintiff had an easement right for a pathway over the property acquired by the State. 3. The next question is whether this right is extinguished by the acquisition proceedings. There are two aspects of this matter requiring consideration. So, we have to proceed on the basis that the plaintiff had an easement right for a pathway over the property acquired by the State. 3. The next question is whether this right is extinguished by the acquisition proceedings. There are two aspects of this matter requiring consideration. Firstly, it has to be considered whether the plaintiff's easement right can be extinguished by the land acquisition proceedings inasmuch as he was not given any notice under S.9 of the Land Acquisition Act, 1894 to submit his claim. The second aspect is whether on the vesting in the State of the property acquired, the right of easement will also be extinguished. As regards the first aspect it has to be borne in mind that the failure, if any, to give notice to the plaintiff under S.9 of the Land Acquisition Act will not affect the declaration that the land over which this easement right is claimed is required for a public purpose. The purpose of S.9 notice is only to fix the compensation amount for the land acquired. Failure to issue that notice to a person interested in the land may possibly not affect his right to make a claim for compensation inspite of the completion of the land acquisition proceedings. But, that will not invalidate the declaration or the acquisition. Whatever that is capable of vesting in the Government will vest in the Government under S.16 of the Land Acquisition Act, 1894. 4. The further aspect of the matter is whether on the vesting of the land in the Government the easement right of the plaintiff is also extinguished. This depends upon the construction of S.16 of the Act. That Section is in the following terras: "16. Power to take possession. When the Collector has made an award under S.11, he may take possession of the land, which shall thereupon vest absolutely in the Government free from all encumbrances." According to the appellants, the expression "free from all encumbrances" in the section takes in this right of easement as well. The word "encumbrance" has not been defined in the Act. Normally it means all lesser interests and obligations annexed to the ownership of land subordinate to the absolute ownership of the property. Thus, a mortgage, a charge and a lease in respect of the property will undoubtedly come within that expression "encumbrance". They are rights or interests in the property. The word "encumbrance" has not been defined in the Act. Normally it means all lesser interests and obligations annexed to the ownership of land subordinate to the absolute ownership of the property. Thus, a mortgage, a charge and a lease in respect of the property will undoubtedly come within that expression "encumbrance". They are rights or interests in the property. A right of easement over the property, according to the appellants, will also be taken in by the expression "encumbrance" and in support of that the appellant's counsel relied on the decisions of the Privy Council, the Supreme Court and some of the High Courts. I shall briefly refer to them here. 5. In Bombay Municipality v. G.I. P. Ry. (AIR. 1916 P. C. 3) it was conceded that "encumbrance" includes a right of passage and so there was no discussion of the principle. In Ganga Vishnu v. M. M. Co. Ltd. (AIR. 1955 Cal. 503), Abdul Karim v. George High School (AIR. 1936 All. 879) and Jivandas v. Narbada Bai (AIR. 1959 Cal. 519) this expression was understood to mean an easement also. The matter incidentally came up for consideration in The Collector of Bombay v. Nusserwanji Rattanji Mistri & Others (AIR. 1955 S.C. 298). At page 305, Para.13, there is the following observation: "Under S.16, when the Collector make an award "he may take possession of the land which shall thereupon vest absolutely in the Government free from all encumbrances". 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 passage, according to me, settles the question involved in the present case. S.3 (b) of the Land Acquisition Act defines 'a person interested' to include a person interested in an easement affecting the land sought to be acquired. He can object to the acquisition when a notice under S.4 that the land is needed or is likely to be needed for a public purpose is published in the Gazette. A service of notice of the notification on the person concerned is not necessary under S.4. He can object to the acquisition when a notice under S.4 that the land is needed or is likely to be needed for a public purpose is published in the Gazette. A service of notice of the notification on the person concerned is not necessary under S.4. If he objects to the acquisition on the ground that his right of way will be permanently affected the Collector might arrange an alternate way or recommend an acquisition of only such portion of land as would not interfere with the right of way or he may drop the acquisition. Even if the person interested in easement does not object at that stage he can ask for compensation for the right of easement that will be lost to him. S.23 of the Act provides for the matters to be considered by the Collector in determining the compensation. Clause.4 of that Section provides that the damage, if any, sustained by the person interested by reason of the acquisition injuriously affecting his other property should be compensated. Clause.5 provides that if in consequence of the acquisition of the land by the Collector the person interested is compelled to change his residence the reasonable expenses incidental to such change should also be taken into account in fixing the compensation. The taking away of the only pathway to the plaintiff's property will clearly be one injuriously affecting his other property within the meaning of Clause.4 of S.23. How to fix that compensation is not the matter for decision here. This is referred to only to show that the right of easement is capable of compensation. That this is the position in English law is also clear from the following passage from'Gale on Easements,' 14th Edn., page 314: "Where lands compulsorily taken under one of the numerous statutes giving compulsory powers are subject to an easement which is disturbed in exercise of statutory powers the person entitled to the easement cannot in general bring an action for disturbance; nor is be entitled to notice to treat. His remedy is by claiming compensation as for lands injuriously affected." In support of this the learned author has cited number of English authorities laying down this principle. Thus compensation could have been claimed by the person interested in it. It is immaterial that compensation was not awarded for it on account of the failure or inability to make a claim. Thus compensation could have been claimed by the person interested in it. It is immaterial that compensation was not awarded for it on account of the failure or inability to make a claim. Therefore, the plaintiff's right of easement over the property acquired is an encumbrance on the property acquired and by the acquisition property is freed from that encumbrance. The decision cited by the plaintiff's counsel, namely, Ratanchand v. Kasim Khaleeli (AIR. 1964 Mad. 209) and Birendra Nath v. Nritunjoy (AIR. 1962 Cal. 275) are not applicable to the facts of this case. In Ratanchand v. Kasim Khaleeli (AIR. 1964 Mad. 209), the question was whether the vesting of the property of an evacuee under Displaced Persons (Compensation and Rehabilitation) Act, 1954, in the Central Government free from all encumbrances will affect the right of easement also. The terms of that Act do not provide for any payment of compensation or enable the person interested in the easement to object to any vesting of the property. Consequently it was held that "Vesting" within the meaning of that Act only means a transfer of the rights of the evacuee and subject to the easements over such land. In this case, as has been stated earlier, Land Acquisition Act provides for raising an objection at the stage of notification proposing the acquisition and there is a provision for payment of compensation to the person whose other land is injuriously affected by the acquisition. This must distinguish the present case from the Madras case referred to above. The scope of the expression "vest" in S.16 of the Land Acquisition Act has been stated by the Supreme Court in F. & F. Merchants' Union v. Improvement Trust, Delhi (AIR. 1957 S.C. 344). In Para.19, page 353, it is stated thus: "On the other hand, S.16 and 17 of the Land Acquisition Act (Act 1 of 1894), provide that the property so acquired, upon the happening of certain events, shall "vest absolutely in the Government free from all encumbrances". In the cases contemplated by S.16 and 17 the property acquired becomes the property of Government without any conditions or limitations either as to title or possession. The legislature has made it clear that the vesting of the property is not for any limited purpose or limited duration." Thus, by the land acquisition the easement right of the plaintiff is also taken away. 6. The legislature has made it clear that the vesting of the property is not for any limited purpose or limited duration." Thus, by the land acquisition the easement right of the plaintiff is also taken away. 6. The plaintiff's counsel contended that the plaintiff had no notice under S.9 of the Land Acquisition Act requiring him to make a claim regarding the compensation for the land acquired and therefore his easement right is not lost to him. It is seen from the evidence in the case that he had no notice. That may possibly enable him to claim compensation by a suit or other proceeding. But, that will not in any way affect the nature of the right of the Government or limit the right of the Government to any extent. Therefore, the learned judge is not correct in holding that the easement right claimed in this case is not extinguished by the land acquisition proceedings. The learned Munsiff has come to a correct conclusion regarding the rights of the parties and it is not possible to give the plaintiff any relief in this case. The hardship which the plaintiff is put to, as observed by the learned Munsiff, is true, and it may not be difficult for the Government to arrange a right of way along the western portion of Sy. No. 85/2 the way that is being used by the plaintiff for egress and ingress to his property. It may not possibly be difficult for the Government to arrange for leaving out a small portion of the property in constructing the compound wall. These are matters for the Government to consider, but this will not form part of the decree. 7. In the result, T allow this second appeal, set aside the judgment and decree of the lower appellate court and restore that of the trial court. The parties shall bear their costs. Allowed.