IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA: RSA.No. 519/2007. Reserved on: September 15, 2008 Date of Decision: September 24, 2008 H.P.S.E.B. and others …Appellants. Versus: Hari Chand …Respondent Coram: The Hon’ble Mr.Justice Sanjay Karol, Judge. Whether approved for Reporting?1 Yes. For the appellants: Mr. Shrawan Dogra, Advocate. For Respondent . Mr.R.K.Gautam, Sr.Advocate with Mr.Naveen Bhardwaj, Advocate. Sanjay Karol, J. The appellants are the “defendants” in the suit filed by the respondent who is the “plaintiff” They are referred to as such hereinafter. The defendants have assailed the judgment and decree dated 30th August, 2007 passed by the District Judge, Kangra at Dharamshala, H.P. in Civil Appeal No. 24- J/XIII/2006 titled as H.P. State Electricity Board and others Vs. Hari Chand affirming the judgment and decree dated 22nd November, 2005 passed by Civil Judge (Sr. Division), Jawali, District Kangra in Civil Suit No.99/99 titled as Hari Chand Vs. H.P. State Electricity Board and others. 1 Whether reporters of Local Papers may be allowed to see the judgment? 2 Plaintiff is the owner of land comprising in Khata No. 417 min, Khatauni No. 530 min, Khasra No. 568/1, measuring 0-02-97 hects. situated in tikka Samkar, Mauza Dhameta, Tehsil Fatehpur, District Kangra, H.P. (hereinafter referred to as the ‘plaintiff’s land’). The southern side the said land is abutted by the land belonging to the of H.P. Public Works Department (hereinafter referred to as the `suit land’) through which he has access to the National Highway. The suit land recorded in the revenue record as “Gair Mumkin Sarak”, touches the National Highway on the one end and the plaintiff’s land on the other end. In public interest, on the suit land, the defendants endeavoured to set up an Electric Transformer by installing electric poles, stay wire and earth wire. Since the installation of the transformer in front of the plaintiff’s land would have allegedly caused nuisance, hindrance and obstruction in free access to the Highway, the plaintiff filed Civil Suit No.99/99 titled as Hari Chand Vs. H.P. State Electricity Board and others praying for a decree of permanent injunction restraining the defendants from installing Electric poles for installation of Electric Transformer, stay wire, earth wire and other connecting electrical equipments over the land comprised and shown in the site plan as `ABCD’ abutting the plaintiff’s land. The defendants in the written statement, inter alia, pleaded public interest and justified action in exercise of 3 the statutory power as the land was owned by the State Government. Based on the pleadings of the parties, the trial Court framed the following issues: 1. Whether the plaintiff is entitled for relief of permanent injunction, as prayed for?. …OPP. 2. Whether the plaintiff is entitled for the relief of mandatory injunction, as prayed for?. …OPP. 3. Whether the plaintiff has no cause of action to file the present suit?. …OPD. 4. Whether the suit of the plaintiff is not maintainable in the present form? ..OPD. 5. Whether the plaintiff is estopped by his act and conduct from filing the present suit?. …OPD. 6. Whether the suit of the plaintiff is bad for non joinder of necessary parties?. ..OPD. 7. Relief. Appreciating the material on record, the trial Court decreed the plaintiff’s suit on the ground that in the absence of any proof of sanction of the scheme, the defendants action could not be said to be in accordance with the provisions of Electricity (Supply) Act, 1948 and also Indian Telegraph Act,1885. Not only the defendants action were held to be bad in law but it was also held that in any event the plaintiff had a right in law to have access to the road from any and every part of his land. The first Appellate Court, after appreciating the ratio of law laid down by the various High Courts as reported in Bharathamatha Desiya Sangam, Madhavaram and another 4 Vs. Roja Sundaram and others, AIR 1987 Madras 183, Movva Butchamma Vs. Movva Venkateswararao and others, AIR 1969 Andhra Pradesh 136, Bala Din Yadav and another Vs. Ramdulare and others, AIR 1990 Allahabad 19, The Municipal Board, Mangalur Vs. Mahadeoji Maharaj, AIR 1965 S.C. 1147, 1995 (3) L.J.R. 49 and 1999 (3) Civil Court Cases 381, came to the following conclusion: “But, this court does not subscribe to the said submissions, because undisputedly the suit land is a public highway or Gair Mumkin Sarak, whether mettaled or unmettaled and in every inch of it every person of the public has got a right to use the same without any obstruction and especially, in the opinion of this court, the defendants have no right to cause obstruction to the frontage of the land of the plaintiff and to free access to his land from every corner and every place of the front of his land and such installation of transformer would definitely diminish the value of the land of the plaintiff. Not to say only this, irrespective of the fact of diminishing of the value of land of the plaintiff, the defendants have no right to install a transformer in front of the land of the plaintiff and on the Gair Mumkin Sarak, which is being used by the public at large.” “In view of the evidence discussed, findings recorded and the law cited supra, the learned lower court has rightly concluded that the plaintiff can claim an access to the road, including the site portion of the road from every inch of the land owned by him and it is not sufficient for the defendants to say that the road and the space 5 which has been left, is sufficient for the plaintiff and as such, they have provided the plaintiff an access.” (Emphasis supplied) The defendants’ appeal was consequently dismissed. Hence the present appeal. The learned counsels for the parties have made submissions on the following substantial questions of law: 1. Whether the plaintiff has a right of access to the road from every corner, place and part of his land abutting the suit land? 2. Whether the action of defendants to erect the transformers is in compliance with the provisions of law or not?. I have heard learned counsel for the parties and also perused the record. The issue is more legal than factual as the facts are either admitted or undisputed. From the record the following undisputed facts emerge: 1. Plaintiff is owner of land comprised in Khasra No. 568/1 (New Kh.No.1926/568). 2. The Suit land comprising Khasra No. 1396 owned by the State of H.P. is possessed by the H.P. Public Works Department and is recorded as “Gair Mumkin Sarak” in the revenue record. It is a kacha unmetalled road adjoining the National Highway and is in fact part of the National Highway. 3. On the east the suit land is bounded by the metalled National Highway leading from Jassur to Dhameta 6 and on the West by the plaintiff’s land. The Northern and the Southern portions are also bounded with the land in possession of the H.P. Public Works Department. 4. On the suit land, the defendants have erected two electric poles for the installation of the Electric Transformer. 5. The trial Court appointed a Local Commissioner to ascertain the factual position and as per the report (Ext.PW- 1/A) and spot map (Ext.PW-2/B) the entire frontage of the plaintiff’s land abutting the road i.e. the suit land measures about 22 metres. In front of the plaintiff’s land, in the corner and at a distance of approximately 6 metres from his boundary wall, on the suit land the defendants have erected two electric poles of 27 feet in height. The stay wires of poles have also been fixed at a distance of 5 metres (approx) from the said Poles. As a result of erection of the said poles and the fixation of the stay wires from this portion, the plaintiff’s access to his land from this part of the main road is obstructed. But, however, for the remaining frontage of 15 metres plaintiff can freely and conveniently exercise his right of egress and ingress without any obstruction or hindrance. 6. The installation of the transformer is to be only on the suit land not on the plaintiff’s land. The installation of the transformer would only cover the unmetalled portion of the road to the extent of 7 metres in front of the plaintiff’s land. 7 7. Even with the installation, there is enough passage left for the public to have access to the National Highway or the unmetalled portion of the road. 8. The defendants in law have a right to erect the pole is not in dispute. 9. However, the defendants have failed to prove the necessary statutory sanctions and permission for erecting the poles and installing the transformer. There is nothing on record to prove that either the consent of the owner or the sanction under the Electricity (Supply) Act, 1948, the Indian Telegraphs Act, 1985 or any other provisions of law were taken before erecting the transformers. The actions of the defendants, therefore, cannot be said to be in accordance with law and the decreeing of the plaintiff’s suit cannot be faulted on that count. However, the larger question which requires consideration is that where the defendants’ action have the sanction of law, whether the plaintiff would still have an absolute right in law of having an access to the suit land from each and every inch of his land. I propose to deal with the decisions referred to and relied upon by the Courts below to arrive at its conclusion. Bala Din Yadav and another vs. Ramdulare and others, AIR 1990 All 19 and KV.K.Janardhanan Vs. State of Tamil Nadu,1995 (3) LJR 49 (Madras) were cases where the 8 obstruction resulted into total stoppage of access to the Highway/street. Therefore, the order of restraint was passed. The ratio of law laid down in The Municipal Board, Manglaur v. Mahadeoji Maharaj, AIR 1965 SC 1147 does not deal with the issue in hand. There the action of the municipal authority was faulted for the reason that the authority was not the owner of the soil beneath the street and the action on behalf the plaintiff, owner of sub-soil was held to be justified. In these circumstances the Apex Court decided the matter in favour of the plaintiff. Movva Butchamma v. Movva Venkateswararao and others, AIR 1969 AP 136 does not deal with the issue as to whether the plaintiff has got a right of access to the public street from each and every point of his property. While deciding the case reported in Damodara Naidu and others v. Thirupurasundari Ammal and another, AIR 1972 Madras 386, the Hon'ble Judge has referred to and relied upon the following passage quoted from Mackenzie’s Law of Highways, 21st Edn. at page 58 : “The owner of land adjoining a highway has a right of access to the highway from any part of his premises. This is so whether he or his predecessors originally dedicated the highway or part of it and whether he is entitled to the whole or some interest in the ground adjacent to the highway or not. The rights of the public to pass along the highway are subject to this right of access. Just as the right of access is subject to the right of the public and must be exercised subject to the general obligations as to nuisance and the like imposed upon a person using the highway ….. the right of the owner of land 9 adjoining a highway to access to or from the highway from or to any part of his land is a private right, distinct from the right to use the highway as one of the public and the owner of the land whose access to the highway is obstructed may maintain an action for the injury whether the obstruction does or does not also constitute a public nuisance”. In Bharathamatha Desiya Sangam Madhavaram and another vs. Roja Sundaram and others, AIR 1987 Madras 183, the Court has also formed its opinion by relying upon aforesaid passage and the decisions of various Courts reported in Ramchand vs. Central Flour Mills of Kasur and others AIR 1935 Lahore 196, Patna City Municipality v. Dwarka Prasad Sinha and others, AIR 1939 Pat. 683, Sree Sree Ramchanderji and others v. Hem Chandra Singh and others, AIR 1945 Pat. 200 and Damodara Naidu and others v. Thirupurasundari Ammal and another, AIR 1972 Madras 386. Common feature in most of the aforesaid cases is that either the owner’s access to the Highway had been completely stopped or the limited access allowed was more of nature of nuisance to the land owner, which is not the case in hand. In K.Sudarsan and others vs. The Commissioner, Corporation of Madras and others, AIR 1984 Madras 292, the Court was dealing with a case where the Hawkers and Peddlers had occupied the street and a writ action was filed to get the same removed. The Court heavily relied upon the 10 following passage from the Halsbury’s Laws of England 3rd Edn. Vol. 19, page 12 to arrive at its conclusion: “A highway is a way over which all members of the public are entitled to pass and repass; and conversely, every piece of land which subject to that public right of passage is a highway or part of a highway…… It is, however, an essential characteristic of a highway that every person should have a right to use it for the appropriate kind of traffic, subject only to any restrictions affecting all passengers alike. It follows that a road or path over which only individuals, or a limited class of the public (for example, the inhabitants or occupiers of a particular house, field, or village) have a right of passage, is not a highway.”. As regards the extent of the right of the public over the highway, it is stated thus at page 73; “The right of the public is a right to ‘pass along’ a highway for the purpose of legitimate travel, not to ‘be on’ it, except so far as their presence is attributable to a reasonable and proper user of the highway as such. A person who is found using the highway for other purposes must be presumed to have gone there for such purposes and not with a legitimate object, and as against the owner of the soil he is to be treated as a trespasser.” Again with regard to the right of access to the highway by adjoining owners, the law is stated at page 78 thus: “An owner of land adjoining a highway is entitled to access to such highway at any point at 11 which his land actually touches it, even though the soil of the highway is vested in another, but he has no such right if a strip of land, however narrow, belonging to another and not subject to the public right of passage, intervenes. An adjoining owner’s right of access from his premises to the highway and vice versa is a private right, and is distinct from his right to use such highway as soon as he is upon it, which (at any rate if the soil of the highway is not his) he enjoys only as a member of the public………The right of access is not limited to the right to pass from the premises to the highway and vice versa, but includes the right of access to a wall on the boundary of the premises.” As regards the remedy for interference with the right of access to highway Halsbury states at page 79 thus: “Interference with a private right of access will, if wrongful, support an action and an adjoining owner may accordingly recover damages where an unreasonable use of the highway has rendered access to his shop unnecessarily inconvenient to himself or his customers. It the interference is also a public nuisance, he is entitled to recover in respect thereof if he can show particular damage, and if the obstruction, though near to a person’s premises, interferes only with his public right, and not with his private right of access, his claim must be based on the ground of a public nuisance causing special damage to him. Where, however, the interference is authorized by statute no action will lie, and there will be no remedy unless compensation is 12 provided for by the statute.” Again at page 283 it is stated as follows: “At common law the duty of repairing a highway includes the duty of preventing and removing obstructions, and if a highway authority sustains special damage it may bring an action for damages. This duty and power is supplemented by general statutory powers and by specific statutory powers to abate nuisances summarily or to prevent their creation.” (Emphasis supplied) In this background the Court had directed the hawkers to be removed while observing that the owner of a property adjacent to a Highway or a public street has got a right of access to such highway or street at any point at which his land actually touches it. From the ratio of law laid down by various Courts in the aforesaid judgments, it is evident that owner of a land adjoining the highway is entitled to access to that highway at any point at which his land actually touches it. This right, however, in my view is subjected to certain restrictions and qualifications. Most of the Courts have referred to and relied upon a passage from the chapter “Access to Highways” of Halsbury’s Laws of England 3rd Edn. Vol.19 page 12 and Mackengies Law of Highways 2nd Edn. page 58 while arriving at its conclusion. For the purpose of proper appreciation and convenience the relevant passages are reproduced as under:- Halsbury’s Laws of England. 13 (Topic Access to Highways, Vol.21, 4th Edn., Pages 83, 84, Paras 120, 121) “120. Nature and extent of right. At common law, an owner of land adjoining a highway is entitled to access to that highway at any point at which his land actually touches it, even though the soil of the highway is vested in another; but he has no such right if a strip of land, however narrow, belonging to another and not subject to the public right of passage, intervenes. The right of access of an adjoining owner from his premises to the highway and vice versa is a private right, and is distinct from his right to use the highway as soon as he is upon it, which (at any rate if the soil of the highway is not his) he enjoys only as a member of the public. An interference with the transference of goods from the highway to private premises is therefore an interference with a public right in which the owner of the premises has an individual interest as a member of the public. The private right of access is subject to the public right of passage which is the higher right, but the public right of passage is also subject to the private right of access to the highway where the adjoining owner may exercise that right by means which do not amount to a serious obstruction to the right of passage and are not therefore inconsistent with it. The right of access is not limited to the right to pass from the premises to the highway and vice versa, but includes the right of access to a wall on the boundary of the premises. Where a footwalk intervenes between the carriageway and the adjoining premises, the owner of those premises, if he also owns the soil up to the middle of the highway, is entitled at common law to access across the footwalk to the carriageway for any kind of traffic which is necessary for the reasonable enjoyment of his premises and will not, as he proposes to conduct it, cause a substantial nuisance; and, it seems, his rights are the same even if he does not own the soil of the highway. “ “121. Remedy for interference: ……………………… Where, however, the interference is authorized by statute, no action will lie and there will be no remedy unless compensation is provided for by the statute.” 14 Meckengies Laws of Highways (under the heading ownership of ways, pages 56, 57) Right of access by adjoining owners—“The owner of land adjoining highway has a right of access to the highway from any part of his premises. This is so whether he or his predecessors originally dedicated the highway on part of it and whether he is entitled to the whole or some interest in the ground subjacent to the highway or not. The rights of the public to pass along the highway are subject to this right of access: just as the right of access is subject to the rights of the public, and must be exercised subject to the general obligations as to nuisance and the like imposed upon a person using the highway”. Right distinct from public right to use the highway—The right of the owner of land adjoining a highway to access to or from the highway from any part of his land is a private right, distinct from the right to use the highway as one of the public, and the owner of the land whose access the highway is obstructed may maintain an action for the injury, whether the obstruction does or does not also constitute a public nuisance “would be the height of absurdity to say that a private right is not interfere with, when a man who has been accustomed to enter his house from a high way finds his doorway made impassable, so that he no longer has access his house from the public highway……………… Remedy for interference---The owner of the land whose access to or from the highway is obstructed may maintain an action for the injury, whether the obstruction does or does not also constitute a public nuisance, but where the obstruction is also a highway nuisance, the plaintiff may be able to claim also as a 15 person suffering particular damage in respect of the nuisance . Interference with access by highway authority---At common law. A highway authority has no power, in discharge of the duty of the surveyor of highways to repair, to raise the level of a highway so as to interfere with the adjoining owner’s right of access; but if the highway has subsided, it may restore the level so far as is necessary for the purposes of ordinary traffic although such restoration may interfere with an adjoining owner’s right of access. Furthermore a highway authority has no power except under statute to erect obstructions in the highway. Under Statute---A highway authority may cause the soil of any street vested in it to be raised, lowered or altered under their powers given by the Highways Act, 1959, s. 78, but they must compensate the adjoining owner for any injury to his private right of access. The authority also has power to erect lamp posts and cabmen’s shelters and plant trees in a highway and the exercise of the power must inevitably cause some injury to the right of access of adjoining owners. There is also statutory power to stop up a means of access to a special road, subject to the payment of compensation . Interference by statutory undertakers---Various local and public general Acts give power to execute works in, under, over or across a highway and if the powers are exercised without negligence, there will be no remedy for interference with a right of access unless compensation is provided; and if compensation is provided, it will not be payable unless the injury would have been actionable but for the statutory authorization. Statutory regulation of right and means of access-- -The making of new means of access is now controlled by the Town and Country Planning Act, 1947. A means 16 of access to the highway may be prevented under