IMPORTANT POINT
Under Section 3 of Himachal Pradesh Village Common Lands vesting and utilization Act, 1974 all rights, title and interests including the easementary rights for grazing on pasture land stood extinguished and all such rights, title and interests vested in the state free from all encumbrances.

Headnote:Punjab Village Common Lands (Regulation) Act, 1961-Section 4-Shamlat land in Majra Dusha-Came to be vested under Punjab Act in Gram Panchayat-The Himachal Pradesh Village Common Lands Vesting and Utilization Act, 1974 passed by H.P.-Sections 3 and 8-Any common land vested in panchayat u/s 4 of Punjab Act vested in State of H.P. free from all encumbrances u/s 3- C.P.C. Order 1 Rule 8-Representative suit on behalf of all residents of Majra Dughe for saving the easementary right of village-Contested by State of H.P.-Decreed by Trial Court-Upheld by 1st appellate and High Court-Appeal against to Supreme Court-Whether on vesting of land u/s 3 H.P. Act, the easementary right of grazing cattle on common land by villagers along with right in the land has been extinguished? (Yes)-Case law referred -Result-Appeal allowed.
       Held : In the aforesaid decisions, it was laid down that the right of easement on land is an encumbrance on the land and once the land vests in the State free from all encumbrances, the easementary right pertaining to that land shall also vest in the State. In Fruit and Vegetable Merchants Union v. Delhi Improvement Trust, 1957 SCR 1, this Court while interpreting the words "vest absolutely in the Government free from all encumbrances" occurring in Section 16 of the Land Acquisition Act held as thus :
       "On the other hand, Sections 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 Sections 16 and 17 the property acquired becomes the property of Government without any conditions or limitations either as to title or possession."
       Thus where the land vests absolutely free from all encumbrances not only the rights in the land vest in the State but possession of the land also. In the present case, Section 3 of the Act starts with an non obstante clause. Notwithstanding contained in any law, agreement, instrument, custom or usage or any decree of the court, all rights, title and interests in the land shall stand extinguished and all such rights, title and interests shall vest in the State free from all encumbrances. If we accept the argument of learned counsel for the respondents that easementary right being over the land and the same has not vested in the State under Section 3 of the Act, the result would be that the land would carry burden or charge affecting possession, interests and rights in the land. Such a meaning cannot be given to the expression free from encumbrances . When the legislature has used the expression free from encumbrances , it means the vesting of land in the State is without any burden or charge on the land, including that of easementary right. We are, therefore, of the view that the consequence of vesting of right in the land free from all encumbrances is that the interest, right and title to the land including the easementary right stood extinguished and such rights vested in the State free from all encumbrances. For the aforesaid reasons, we hold that under Section 3 of the Act, all rights, title and interests including the easementary rights stood extinguished and all such rights, title and interests vested in the State free from all encumbrances. Before we part with the case, we cannot overlook the interest of the plaintiff-respondents herein. It is not disputed that the land in dispute is a pasture land and is being used for grazing. Section 8 of the Act provides the purpose for which land vested in the State Government can be utilised. One of the purposes for which such land can be utilised is for grazing the cattles and the State Government is required to allot the same as pasture land. If the purpose of vesting is to provide land to village community for grazing, there is no reason why the land be not be used as a pasture land for grazing. However, we leave this question open to be decided by the State government. For the aforesaid reasons, we are of the view that the courts below fell in error in holding that the easementary right has not vested in the State. We, therefore, set aside the judgment under challenge. The appeal is allowed. There shall be no order as to costs. (Paras 8, 9, 10, 11 and 12)

JUDGMENT

V.N. Khare, J.-A large tract of land in village Kungrat, Tehsil and District Una was shamilat land. The proprietors of village Kungrat reserved certain area in Shamilat land for grazing purposes and other such common purposes. Subsequently, the village was partitioned and divided into 14 sub-divisions called Majras. The land measuring 451 kanals 19 marlas which was a shamilat land and used for grazing purposes fell in Majra Dughe. The said pasture land was used by the village community for grazing their cattles. Subsequently, under the Punjab Village Common Lands (Regulations) Act, 1961 (hereinafter called the Punjab Act ), the said land came to be vested in the Gram Panchayat. However, the village community of Majra Dughe continued to exercise their right of grazing and other such right over the said pasture land. Thereafter, the State of Himachal Pradesh passed an Act known as The Himachal Pradesh Village Common Lands Vesting and Utilization Act 1974 (hereinafter referred to as the Act ). Under Section 3 of the Act, all rights, title and interests in the land in any estate vested in Panchayat under Section 4 of the Punjab Act vested in the State free from all encumbrances. It is at this stage, the plaintiff-respondents herein, who are the residents of Majra Dughe brought a suit in a representative capacity on behalf of all the residents of the village for declaration that the land in dispute is being used for grazing cattle, cutting fuel wood and for other common purposes and thus it is their easementary right and the defendant-appellant be restrained from interfering in their rights and enjoyment of the said land. The appellant herein, contested the suit. However, the trial court decreed the suit. The appeal preferred by the appellant was substantially dismissed. The High Court also dismissed the second appeal preferred by the appellant. The view taken by the High Court was that under Section 3 of the Act, only the interest and right in the land would vest in the State and easementary right of grazing being over the land the same has not vested in the State under Section 3 of the Act. In that view of the matter, the State has no authority to interfere with the easementary right of the village community. It is against the said judgment of the High Court, this appeal has been preferred.

2. Learned counsel appearing for the appellant urged that under Section 3 of the Act, the easementary right along with the right in the land has been extinguished and came to be vested in the State free from all encumbrances and the view taken by the High Court is erroneous. On the other hand, Shri Arvind Kumar, learned counsel appearing for the respondents, relying upon a decision in the case of Megh Raj and another v. Allah Rakhia and others1 urged, that the expressions right in the land and right over the land convey different meanings. According to him, easementary right which is over the land is distinct from right in the land and since only right in the land has vested in the State, therefore, there is no vesting of easementary right in the State.

3. Before considering the argument, it is necessary to examine the provisions of the Act. Section 3 of the Act runs as under:

"3. Vesting of rights in the State government.-(1) Notwithstanding anything to the contained in any other law for the time being in force or in any agreement, instrument, custom or usage or any decree or order of any court or other authority all rights, title and interests including the contingent rights, if any, of the landowner in the lands in any estate-

(a) vested in a Panchayat under section 4 of the Punjab Village Common Lands (Regulation) Act, 1961 (18 of 1981) as in force in the areas added to Himachal Pradesh under section 5 of the Punjab Re-organisation Act, 1966 (31 of 1966) except lands used or reserved for the benefit of village community including streets, lanes, playgrounds, schools, drinking wells or ponds within aba

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2001 Supreme(SC) 1213

Cases Referred (4)