Punjab-Haryana High Court
Vinay Kumar And Others vs State Of Haryana And Others on 12 December, 2011
Author: Ritu Bahri
Bench: Ritu Bahri
R.S.A No. 4451 of 2009 (O&M) -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
R.S.A No. 4451 of 2009 (O&M)
Date of decision:- 12.12.2011
Vinay Kumar and others ...Appellants
Versus
State of Haryana and others ...Respondents
CORAM: HON'BLE MS. JUSTICE RITU BAHRI
Present:- Mr. S.N. Pillania, Advocate
for the appellants.
Dr. Deepak Jindal, DAG, Haryana
1. To be referred to the Reporters or not?
2. Whether the judgment should be reported in the Digest?
RITU BAHRI J.
This is a regular second appeal against the judgment and decree dated 15.04.2009 passed by the learned Additional District Judge, Jind whereby the appeal filed by State of Haryana was allowed.
The plaintiffs-respondents had filed a suit against the defendants- appellants seeking a mandatory injunction by restraining the defendants from digging/constructing any drain known as "Kalwan-Kinana" through the agriculture land, without providing a path and without constructing a culvert over the drain for engress and ingress to their fields. The grouse of the plaintiffs-appellants is that the defendants had acquired the agriculture land of the plaintiffs. The land of the plaintiffs was acquired for constructing a drain known as "Kalwana-Kinana". The R.S.A No. 4451 of 2009 (O&M) -2- agriculture land of the plaintiffs has been bifurcated in two parts. There is no path to the plaintiffs for egress and ingress to their fields. Compensation of the land has been received by the plaintiffs. There is no policy of the Government to construct any culvert on an un-cosolidated path. The land of the plaintiffs falls near to Jind- Rohtak National Highway on which the department will provide an .AR. Bridge and the plaintiffs can use the berm left by the department for which the department has no objection and further the plaintiffs are at liberty to raise the construction of culvert at their own costs. As per the government policy, no culvert can be provided at a distance of 600 ft from another bridge and as per the policy of the Government, culvert/bridge can only be constructed at a distance of 1 k.m apart and that too on a consolidated path. On pleadings of parties, following issues were framed on 02.05.2002 by the trial Court:-
"(1) Whether there is no sanction drain/minor through the land of plaintiff specifically mentioned in the head note of the plaint and the plaintiff is entitled for relief of injunction as prayed? OPP (2) Whether the suit of the plaintiff is without cause of action and not maintainable in the present form and plaintiff has no locus standi to file it? OPD (3) Relief."
Sh. S.N. Gupta, Sub Regional Officer (Retired) in his cross examination has submitted that the plaintiffs have no passage to walk down on the other side of their fields on the drain. It has further been admitted that because of bifurcation of the fields of the plaintiffs, the one block of agriculture land of plaintiffs has been completely cut off from the other part. All the issues R.S.A No. 4451 of 2009 (O&M) -3- were decided against the defendants and in favour of the plaintiffs. The trial Court has rejected the stand taken by the defendants that in view of the policy dated 19.02.1980 issued by Commissioner, Secretary of Irrigation Department, they are unable to construct culvert in less than 1 k.m distance of A.R. Bridge. The defendants were in the process of constructing A.R Bridge on national highway. The trial Court has rejected this argument on the ground that the policy Ex DW1/B does not restrict the power of the department from providing relief to the plaintiffs, which is essentially based upon their right based upon easement of necessity and the demand of the plaintiffs cannot be termed unrealistic by any stretch of imagination. Section 13 of the Indian Easement Act, 1882 is applicable to the facts of the present case, the plaintiffs is entitled to right of way, for agricultural purposes only, over B's field to the field retained.
The suit of the plaintiffs was decreed with costs. Further the defendants were directed to raise the construction of culvert on the kalwa to kinana drain. In connect both the blocks of the fields of plaintiffs in the eastern as well as western side as duly shown in Annexure Ex.P1 within a period of three months.
Feeling aggrieved, the State of Haryana filed appeal against the trial Court judgment. The appeal was allowed on the ground that after acquisition, the plaintiffs have been duly compensated. They cannot raise any claim for construction of culvert over the drain. The defendants themselves, have offered the plaintiffs to use the kacha berm of the drain for going to the fields and mover. Their land is adjacent to the National Highway and the department was in the process of providing a bridge. A direction given by the trial Court to construct a R.S.A No. 4451 of 2009 (O&M) -4- culvert for the plaintiffs has been set aside the learned Appellate Court. The question for consideration before this Court is as under:-
"1. Whether the plaintiffs can seek a direction from the department after accepting the due compensation of the land for constructing the culvert?
2. Whether the land of the plaintiff being near the National Highway leading from Jind to Rohtak where the department is providing A.R bridge, there is still a requirement to construct a culvert on the drain?
3. Whether the plaintiffs can claim construction of a culvert on the drain as per Section 13 of the Indian Easement Act, 1882?"
It is not a question of dispute between the parties that the plaintiffs have accepted the compensation of the land. The plaintiffs had an opportunity to file their objection under Section 5 of the Land Succession Act as they were very well aware that the land was being acquired for construction of A.R Bridge. The land has been acquired after following due procedure under the Land Acquisition Act. Another fact for consideration is that there is a National Highway abutting the land of the plaintiffs which can be used by them for egress and ingress for their agricultural land. The A.R. Bridge is in the process of construction by the department. This will further facilitate the plaintiffs to approach their land. After having accepted the compensation from the department, they cannot raise their claim for construction of culvert over the drain as they have already been given liberty to use the berm left by the department.
Learned counsel for the appellant has not referred to any judgment. The plaintiffs cannot seek benefit under Section 13 of the Indian Easement Act, R.S.A No. 4451 of 2009 (O&M) -5- 1882 as in the facts of the present case, the land of the plaintiffs has been duly acquired after following the due procedure of the Land Acquisition Act. They have been duly compensated. The State Government vide policy dated 19.02.1980 issued by Commissioner, Secretary of Irrigation Department cannot construct a culvert in less than 1 k.m distance that too on a consolidated path.
After going through the facts and evidence led, it is not disputed that the land of the plaintiffs is adjacent to the National Highway and the department is providing A.R. Bridge thereon and there is no requirement directing the Irrigation Department to construct the culvert for the plaintiffs. This finding of fact does not require any interference.
No question of law much less substantial question of law arises for consideration by this Court.
Accordingly, R.S.A is dismissed.
December 12, 2011 ( RITU BAHRI ) G.Arora JUDGE