JUDGMENT : Mohinder Pal, J. 1. Being aggrieved and dissatisfied with the judgment and decree passed by learned 2nd Joint District Judge, Mehsana in Regular Civil Appeal No. 195 of 1984 whereby learned Judge has set aside the judgment and decree passed by learned Civil Judge, Senior Division, Mehsana in Regular Civil Suit No. 75 of 1978 against defendant No. 3 (Union of India owning Western Railways), present appeal has been preferred. 2. Brief facts of this case are that, two agricultural lands bearing survey Nos. 1702 & 1703 situated in Mehsana were at one time owned by one Shah Navnitlal Antalal along with other lands bearing survey No. 1701 etc. One Nafatlal, in the year 1959, obtained permission for non-agricultural use of survey No. 1702. Thereafter, he divided these lands into 90 plots for construction of houses. He sold these plots to different persons. Original plaintiffs were owners of some of these plots who built houses over their plots and were residing there. 3. It is further case of the plaintiffs that to the west of survey No. 1702, there is a land bearing survey No. 1703 and to the further west there is national highway from Delhi to Ahmedabad. According to the plaintiffs, there was a passage which was being used by them to approach the national highway from survey No. 1702 having boundary with survey No. 1703. It is their allegation that son of defendant No. 1 was prosecuted for theft of goat in which wife of plaintiff No. 4 was the prosecution witness. There was a quarrel between the plaintiffs and the defendants as a result of defendant No. 1 having obstructed the passage over which plaintiffs had a right to approach the national highway. Shri Shah Navnitlal Antalal, original owner, died and, after his death, his wife Kantaben sold the lands bearing survey Nos. 1703 & 1701 and some other lands to the present defendant No. 1. 4. In the meantime, Union of India, who is original defendant No. 3, acquired survey No. 1703 for the purpose of constructing staff quarters of Western Railways. Award in that respect was passed in the year 1970. Defendant No. 1 purchased the remaining land bearing survey No. 1703 from Kantaben by a registered sale deed dated 11.11.1975. 4. In the meantime, Union of India, who is original defendant No. 3, acquired survey No. 1703 for the purpose of constructing staff quarters of Western Railways. Award in that respect was passed in the year 1970. Defendant No. 1 purchased the remaining land bearing survey No. 1703 from Kantaben by a registered sale deed dated 11.11.1975. A dispute arose between the original plaintiffs and the defendants for use of the passage which linked the national highway with the plots of the plaintiffs. The suit for easement filed by the plaintiffs was decreed, however, in appeal the findings were reversed by holding that the benefit of easement of necessity would get exhausted by acquisition and as such the right to passage by the plaintiffs for joining their plots to the national highway was declined. Aggrieved from this decision, the present appeal has been preferred before this Court. 5. Learned counsel for the appellants has submitted that the findings recorded by the appellate Court are erroneous while holding that easement of necessity would get exhausted by acquisition. According to him, the finding itself is self-contradictory. Once the Courts have come to the conclusion that the passage in question was the only access for the appellants to approach the national highway, by saying that the easement of necessity would get exhausted after acquisition was against the facts and was wrong. In support of this submission, he has referred to the following two decisions: "(i) H.P. State Electricity Board v. Shiv K. Sharma reported in 2005 (0) GLHEL-SC-10381 (ii) Vijayan v. State of Kerala reported in 2004 (3) KLT 228 ." 6. On the other hand, learned counsel representing the Railways has argued with vehement that the lands in question, including the passage used by the appellants, have been acquired by the Government for which compensation has been paid by the Railways. It is submitted that once price has been paid by the Railways for acquisition of the lands, the right to easement claimed by the plaintiffs would stand exhausted. Unless the appellants are ready to pay price for the passage alleged to have been used by them, the benefit of passing through this passage cannot be granted. 7. I have considered the submissions made by both sides. It is an admitted fact that the passage in question was the only access for the plaintiffs to approach the national highway. Unless the appellants are ready to pay price for the passage alleged to have been used by them, the benefit of passing through this passage cannot be granted. 7. I have considered the submissions made by both sides. It is an admitted fact that the passage in question was the only access for the plaintiffs to approach the national highway. This finding is recorded by the trial Court and affirmed by the appellate Court. This Court agree with the submissions of learned counsel for the appellants that the judgment passed by the appellate Court itself is contradictory, as on the one hand it has been recorded that there is no other passage for the appellants to approach the highway, while on the other it has been concluded that the easement of necessity would get exhausted by acquisition in this case. The submissions made by learned counsel for the appellants are further supported by the aforementioned decisions in cases of H.P. State Electricity Board (supra) and Vijayan v. State of Kerala (supra). In H.P. State Electricity Board (supra), paragraphs 6 to 11 are reproduced, as under: "6. 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. 7. 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. 8. 8. 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." 9. 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." 10. 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. 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. 11. 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..... " 8. In Vijayan v. State of Kerala (supra), paragraphs 7 to 13 are reproduced as under: "7. We may examine the claim in the above background since the stand of the respondents are mainly based on provisions of the Land Acquisition Act and especially Section 16 thereof. It is pointed out that when the Collector makes an award under Section 11, he has to take possession of the land which shall thereupon vest absolutely with the Government free from all encumbrances. According to the Standing Counsel the right presently claimed by the petitioners is almost equal to an encumbrance on the acquired property. Whatever might have been the right of the petitioners they stand extinguished. The inconvenience caused to the petitioners could not have been avoided in any manner recognized by law, 8. The counsel further submits that the property had been acquired for a bus bay, Buses will be parked there for facilitating boarding and for passengers to get down. There is possibility of even putting up a bus shelter, in due course. A pathway, or an entry to the property, as now claimed therefore is a proposition which does not go hand in hand with the purpose of acquisition. There is possibility of even putting up a bus shelter, in due course. A pathway, or an entry to the property, as now claimed therefore is a proposition which does not go hand in hand with the purpose of acquisition. The KDA has all the rights to develop the acquired portion at its discretion, and also for barring entry or thoroughfare by whatever means it decides. 9. The proposition mooted as above appears to be made unmindful of the arbitrariness which it brings along. If we accept the argument, the position would not have been different from a case if the petitioners had a residential house there. It should be idle to contend that merely because of the acquisition and shifting of boundaries, the petitioners will have no more right to reside in the premises or can have no access to public road. Acquisition proceedings cannot nullify the rights of movement. This is essentially different from the encumbrance spoken to by Section 16 of the Land Acquisition Act. Easement of access and easement of necessity is not to be mixed up with principles relating to encumbrances. If the KDA was to construct a compound wall from one end of the property to the other in the portion taken possession of, it would have been objectionable. Likewise, digging of trenches, so as to suffocate the property owner, also could not have received any stamp of approval, if it affected their right for access. The authorities cannot take a decision in their absolute discretion that they were entitled to bar access even. By the act of acquisition, respondents have not been able to secure any better or greater rights, than those they had earlier. If on the road margin, a blockade could not have been placed earlier, an acquisition coupled with alteration of boundary by itself did not confer on them any more rights. The contention of the respondent if accepted would result in astounding consequences. A local authority definitely cannot put up a brick wall or even a stone on the margin of the drain though it may be vested in them, if the effect thereof is to block entry to a house holder, in any manner. 10. The decision reported in Joseph v. District Magistrate, 1996 (2) KLT 490 , also might be relevant. A local authority definitely cannot put up a brick wall or even a stone on the margin of the drain though it may be vested in them, if the effect thereof is to block entry to a house holder, in any manner. 10. The decision reported in Joseph v. District Magistrate, 1996 (2) KLT 490 , also might be relevant. With reference to the law laid down in Harrison v. Duke of Hutland, (1893) 1 Q.B.142 and Harper v. Haden (G.N.) & Sons, (1933) Ch. 298, a learned Judge had held that a person owning land adjoining a highway has a right of access to the highway from any point. The principle gives expression to a common sense approach. If a person had a right of access to a public road, for the reason that acquisition of a part of the land was made on public purpose, the right of such persons for continued access to the main road could not have been prevented. I hold that the encumbrances referred to in Section 16 of the Land Acquisition Act is not intended to deal with the situation similar to that highlighted here. 11. The counsel refers to Section 49 of the Land Acquisition Act and submits that if the acquisition was in respect of any part of a house, manufactory or other building, in case the usefulness of the whole building stand to be affected, it should have been possible for the affected property owner to urge that the building as a whole is liable to be acquired. However, in the present case, since no building at all is involved, it is submitted that the benefit of such situation may not be possible to be claimed, but rest of the situations are similar. In this scenario, especially when the petitioners submit that what was required is not a pathway as misunderstood by the KDA, but only an access, I think the request can be considered as only reasonable and as coming within the rights of the petitioners for life, and enjoyment of their property, and also coming within the fold of Article 300A of the Constitution. 12. Notwithstanding the use of the property as a bus bay, as is envisaged, it continues to be part of the national highway, which has its boarder extended. 12. Notwithstanding the use of the property as a bus bay, as is envisaged, it continues to be part of the national highway, which has its boarder extended. As a citizen, the petitioner will have a right to use the bus bay and if necessary he will also have a right to enter into the adjoining land which was lying as a Single block before acquisition. 13. The petitioners, will be entitled to access to their properties from the national highway and from the bus bay portion. I direct that KDA should pass follow up order providing a ten feet width opening and petitioners will have the right to suggest the point of incision. This should be done within one month..... " 9. It is not in dispute that the Central Government, through the Western Railways, is a welfare State. The stretch of land in dispute is also being used by employees of the Railways. No prejudice will be caused to the respondent Western Railways in case some passage is used by the appellants for their access to the highway. There cannot be mathematical precision in dealing with the human beings. The Government authorities are not expected to adopt a wooden attitude and stick to technicalities while dealing with the public. The petitioners who have constructed their houses and were residing in their houses were required to be given notices before acquisition. 10. In view of the aforesaid discussions, the present appeal is allowed. The passage in question, which is the only access for the appellants to the highway, will be made open for their use. 11. Resultantly, present appeal succeeds. The judgment and order under appeal is hereby set aside.