Holding

Section 3 of the Himachal Pradesh Village Common Lands Vesting and Utilization Act, 1974 extinguishes all rights, title and interests, including easementary rights, and vests them in the State free from all encumbrances.

Summary

The dispute concerned a tract of shamilat pasture land used by the village community of Majra Dughe for grazing. The land, originally vested in the Gram Panchayat under the Punjab Village Common Lands (Regulation) Act, 1961, later fell under the Himachal Pradesh Village Common Lands Vesting and Utilization Act, 1974, which under Section 3 declared that all rights, title and interests in such land would stand extinguished and vest in the State free from all encumbrances. The villagers filed a suit claiming an easementary right of grazing; the trial court upheld the claim, but the High Court reversed, holding that easementary rights, being "rights over the land," did not vest in the State. The Supreme Court examined the meaning of "encumbrance" and held that easementary rights are encumbrances; therefore, Section 3 extinguishes them and vests them in the State. Consequently, the Court set aside the High Court’s decision and allowed the appeal, confirming that the State holds the land free of all encumbrances, including grazing easements.

Issues considered

The meaning of 'encumbrance' under Section 3 of the Himachal Pradesh Village Common Lands Vesting and Utilization Act, 1974.
Whether easementary rights, such as grazing rights, are covered by the term 'encumbrance' and thus vest in the State.
The distinction between 'right in the land' and 'right over the land' for the purpose of vesting.
Whether the State can lawfully interfere with the village community's grazing easement.

Legislation cited

Land Acquisition Act, 1894s. 16, s. 17
Punjab Village Common Lands (Regulation) Act, 1961s. 4

Subjects

easementencumbranceland vestingvillage common landsHimachal Pradeshgrazing rightsstatutory interpretationSection 3free from encumbrances

Judgment

STATE OF HIMACHAL PRADESH A
v.
TARSEM SINGH AND ORS.

SEPTEMBER 4, 200 I

(V.N. KHARE, B.N. AGRAWAL, JJ.] B

Himachal Pradesh Village Common lands Vesting and Utilization Act,
1974.

Section 3-Effect of-Village community using land for grazing-land C
vesting in the State free from all encumbrances under Section 3-Village
community claiming easementary right over the /and-Held, vesting of land in
the State is without any burden or charge on the land, including that of
easementary right-Punjab Village Common lands (Regulation) Act, 1961.

Words & Phrases-Encumbrance-Meaning of
D

Disputed pasture land was shamilat land and was being used by village
community for grazing their catties. The said land came to be vested in Gram
Panchayat under the Punjab Village Common Lands (Regulations) Act, 1961
/
but the village community continued to exercise their right of grazing and E
other such right over the said pasture land. Thereafter, the Himachal Pradesh
Village Common Lands Vesting and Utilization A9\ IY74 was passed and all
rights, titles and interests in the land in any estate vested in Panehayat under
Section 4 of the Punjab Act vested in the State free from all encumbrances
under Section 3 of the 1974 Act. Respondents are residents of village
community and they tiled a suit in representative capacity against appellant- F
State for declaration that they have easementary right of grazing over the
said land which was decreed by the trial court. Appeal preferred by appellant
was substantially dismissed. Second appeal preferred by appellant was
dismissed by the High Court on the ground that only interest and right in
the land and not easementary right of grazing over the land vested in the G
State under Section 3 of the t 974 Act. Hence, this appeal by the State.

Appellant contended that under Section 3 of the 1974 Act, the
easementary right alongwith the right in the land had been extinguished and
came to be vested in the State free from all encumbrances.

545 H
546 SUPREME COURT REPORTS [2001) SUPP. 2 S.C.R.

A Respondent contended that expressions 'right in the land' and 'right
over the land' convey different meanings and since only right in the land has
vested in the State, there is no vesting of easementary right in the State which
is over the land.
...
Allowing the appeal, the Court
B
HELD: 1.1. The word "encumbrance" means a burden or charge upon
property or a claim or lien upon an estate or on the land. "Encumber" means
burden of legal liability on property, and, therefore, when there is
encumbrance on a land, it constitutes a burden on the title which diminishes
C the value of the land. (550-E[

Fruit and Vegetable Merchants Union v. Delhi Improvement Trust, (1957)
SCR 1 relied on.

Abdul Karim Khan and Ors. v. Managing Committee, George High School,
D AIR (1936) Allahabad 879; Rashid Allidina v. Jiwandas Khemji and Anr., AIR
30 (1943) Calcutta 35 and Ganga Vishnu Swaika v. Machine Manufacturing Co.
Ltd and Anr., AIR(l955) Calcutta and 503, referred to.

1.2. If the argument of the respondents that easementary right being
over the land and the same has not vested in the State under Section 3 of the
E Himachal Pradesh Village Common Lands Vesting and Utilization Act, 1974
is accepted, 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
F land in the State is without any burden or charge on the land, including that
of easementary right. 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. Under Section 3 of the 1974 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. [551-D-F)
G
Atma Ram v. State of Punjab, AIR(l959) SC 519 and Megh Raj and Anr.
v. Allah Rakhia and Ors., AIR, 34 (1947) Privy Council 72, distinguished.

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 4979 of
H 1995.
STATEv. TARSEMSINGH [KHARE,J.] 547
From the Judgment and Order dated 1.7.94 of the Himachal Pradesh A
High Court in R.S.A. No. 244 of 1989.

Naresh K. Sharma for the Appellant.

Arvind Kumar, S.C. Gupta and Ms. Laxmi Arvind for the Respondents.
B
The Judgment of the Court was delivered by

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- C
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 catties.
Subsequently, under the Punjab Village Common Lands (Regulations) Act,
1961 (hereinafter called the 'Punjab Act'), the said land came to be vested D
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 E
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 defendant-appellant be restrained F
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 G
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.
H
548 SUPREME COURT REPORTS [2001) SUPP. 2 S.C.R.

A 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 Anr. v. Allah Rakhia and Ors., AIR
B 34 (1947) Privy Council 72 urged, that the expressions 'right in the land' and
"right over the land' convey different meanings. Accroding 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.
c Before considering the argument, 1t 1s necessary to examine the
provisions of the Act. Section 3 of the Act runs as under:

"3. Vesting of rights in the State government.-(!) Notwithstanding
anything to the contrary contained in any other law for the time being
D 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
E Common Lands (Regulation) Act, 1961 (18of1981) 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 abadi

F
deh or garah deh;
(b) described in the revenue record3 as shamilat taraf, pattis, pannas
-
and thola and not used according to revenue records for the
benefit of the village community or a part thereof or for common
purposes of the village in the areas added to Himachal Pradesh
under section 5 of the Punjab Re-organisation Act, 1966 (31 of
-
G 1966); and
(c) described in revenue records as shamilat, shamilat deh, shamilat
taraf, shamilat chak and patti in the areas comprised in Himachal
Pradesh, immediately before first November, 1966;
H shall stand extinguished and all such rights, title and interests shall
STATE v. TARSEM SINGH [KHARE, J.] 549
vest in the State Government free from all encumbrances." A
A perusal of Section 3 of the Act would show that all interests, title and
rights in the land vested in the Gram Panchayat stood extinguished and came
to be vested in the State free from all encumbrances. The question arises
whether easementatry right, namely, grazing right and such other rights also
came to be vested in the State along with right in the land. Learned counsel B
for the respondents relying upon a decision in Megh Raj and Anr. v. Allah
Rakhia and Ors., (supra) referred to Entry 21 of List II of Seventh Schedule
to Government of India Act, 1935 and Entry 18 of List II of Seventh Schedule
of Constitution of India, which run respectively as under;

"Entry 21-Land, that is to say, rights in or over land, land tenures, C
including the relation of landlord and tenant, and the collection or
rents; transfer, alienation and devolution of agricultural land; land
improvement and agricultural loans; colonization; Courts of Wards;
encumbered and attached estates; treasure trove."

"Entry 18-Land, that is to say, rights in or over land, land tenures D
including the relation of landlord and tenant and the collector of
rents, transfer and alienation of agricultural land; land improvement
and agricultural loans; colonization."

In Megh Raj and Anr. v. Allah Rakhia and Ors., (supra), an argument E
was raised that the Punjab Restitution of Mortgage Land Act is ultra vires.
In that connection, the Privy Council held thus:

"rights in or over land." "Rights in land" must include general rights
like full ownership or leasehold or all such rights. "Rights over land"
would include easements or other collateral rights, whatever form F
they might take. Then follow words which are not words of limitation
but of explanation or illustration, giving instances which may furnish
a clue for particular matters: thus there are the words "relation of
landlord and tenant and collection of rents."

In Atma Ram v. State of Punjab, AIR (1959) SC 519; this Court, after G
referring to Entry 18 of List II of Seventh Schedule of the Constitution of
India, held thus:

" .... that the Entry ~ead along with Art. 246 (3) of the Constitution, has
vested exclusive power in the State to make laws with respect to
"rights in or over land, land tenures including the relation of landlord H
550 SUPREME COURT REPORTS [2001] SUPP. 2 S.C.R.

A and tenant.. ..". The provisions of the Act set out above, deal with the
landlord's right in the land in relation to his tenant, so as to modify
the landlord's rights in land, and correspondingly to expand the
tenant's right therein. Each of the expressions, "rights in or over
land" and "land tenures," is comprehensive enough to take in measures
of reforms of land tenures, limiting the extent of land in cultivating
B possession of the landowner, and thus, releasing larger areas of land
to be made available for cultivation by tenants.

In the aforesaid two cases, Entry 21 of List II of Seventh Schedule of
Government of India Act and Entry 18 of List II of Seventh Schedule of
C Constitution of India were relied upon for the purpose of holding that there
was a legislative competence while enacting the land Acts. The question
whether vesting of all interests and rights in the land free from all
encumbrances would also include easementary right was not the subject-
matter of decisions and, therefore, said decisions have no application in the
present case. Section 3 of the Act provides that, notwithstanding any custom,
D usage, instrument, agreement or decree of the court all titles, interests and
rights in the land shall stand extinguished and all such rights, title and interests
shall vest in the State free from all encumbrances. Learned counsel when
argued that easementary right being over the land has not vested in the State
omitted to consider the significance of the expression 'free from
E encumbrances'. The word "encumbrance" means a burden or charge upon
property or a claim or lien upon an estate or on the land. "Encumber" means
burden of legal liability on property, and, therefore, when there is encumbrance
on a land, it constitutes a burden on the title which diminishes the value of
the land. In Abdul Karim Khan and Ors. v. Managing Committee, George
High School, AIR (1936) Allahabad 879, it was held that encumbrance would
F include easementary right of drainage over the land. In Rashid Allidina v.
Jiwandas Khemji and Anr., AIR 30 (1943) Calcutta 35, it was laid down that
the word encumbrance' has always been understood to include easementary
right. In Ganga Vishnu Swaika v. Machine Manufacturing Co. Ltd and Anr,
AIR 1955 Calcutta 503 it was ruled that an easementary right to discharge
G water on other's land comes within the meaning of encumbrance on the right
in the land.

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
H shall also vest in the State. In Fruit and Vegetable Merchants Union v. Delhi
STA TE v. TARSEM SINGH [KHARE, J.] 551

Improvement Trust, [ 1957] SCR I, this Court while interpreting the words A
"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, ss. 16 and 17 of the Land Acquisition Act (Act
I of 1894), provide that the property so acquired, upon the happening
of certain events, shall 'vest absolutely in the Government free from B
all encumbrances'. Jn the cases contemplated by ss.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 vests in the State but possession of the land also. C
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 D
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 E
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 l:::nd free
from all encumbranes is that the interest, right and title to the land including
the easementary right stood extinguished and such rights vested in the State F
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.
G
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 catties H
552 SUPREME COURT REPORTS [2001] SUPP. 2 S.C.R.

A 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 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
B 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.

A.K.T. Appeal allowed.