STATE OF HIMACHAL PRADESH Vs. TARSEM SINGH

JUDGEMENT

(1.) 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 alled the 'Punjab Act'), the said land came to be vested in the Gram Panchyat. 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 S.3 of the Act, all rights,title and interests in the land in any estate vested in Panchayat under S.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 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 this 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 S.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 S.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 S.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 vs. Allah Rakhia, AIR 1947 PC 72 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 provision of the Act, Section 3 of the Act runs as under :