Appeal No 75  76 of 1974
Appeal by special leave from the Common Judgment and Order dated 27 28 9 1973 of the Bombay High Court Nagpur Bench in Spl
Civil Applications Nos
826 of 1968  389 of 1971
Sardar Bahadur Saharya and Vishnu Bahdur Saharya for the appellants
MN Phadke and A G Ratnaparkhi for respondent No 1 and 2 in Appeal No 7574
Niren De Attorney General of India M N Phadke and A G Ratnaparkhi for respondent No 1 In Appeal No 7674
KL Rathi and M N Shroff for respondents Nos
In Appeal No 7574 and respondent No 3 in appeal No 7674
The Judgment of P N Bhagwati and A C Gupta JJ was delivered by Bhagwati J N L Untwalia J gave a separate Opinion
But we are writing a separate judgment as we feel that the discussion in the judgment of our learned brother Untwalia J in regard to delivery of symbolical  and actual  possession under rules 35 36 95 and 96 of Order XXI of the Code of Civil Procedure is not necessary for the disposal of the present appeals and we do not wish to subscribe to what has been said by our learned brother Untwalia J in that connection nor do we wish to express our assent with the discussion  of the various authorities made by him in his judgment
We think it is enough to state that when the Government proceeds to take possession of the land acquired by it under the Land Acquisition Act 1894 it must take actual possession of the land since all interests in the land are sought to be acquired by it
Nor would possession merely on paper be enough
How such possession may be taken would depend on the natureof the land
Such possession would have to be taken as the natureof the land admits of
There can be no hard and fast rule laying down what act would be sufficient to constitute taking of possession of land
We should not therefore be taken as laying down an absolute and inviolable rule that merely going on the pot and making a declaration by beat of drum or otherwise would be sufficient to constitute taking of possession of land in every case
It appears that the appellant was not present when this was done by the Tehsildar but the presence of the owner or the occupant of the land is not necessary to effectuate the taking of possession
It is also not strictly necessary as a matter of legal requirement that notice should be given to the owner or the occupant of the land that possession would be taken at a particular time though it may be desirable where possible to give such notice before possession is taken by the authorities as that would eliminate the possibility of any fraudulent or collusive transaction of taking of mere paper possession without the occupant or the owner ever coming to know of it
We are of the view on the facts and circumstances of the present case that the Tehsildar took actual possession of that part of the land which was waste or arable and handed it over to the Principal of the Agricultural College
It is true that the Special Land Acquisition Officer in his letter dated 13th December 1961 to the Commissioner stated that possession of the entire land was still with the appellant and it was not actually taken possession of by the Principal Agricultural College
But it is obvious that this statement was made by the Special Land Acquisition Officer because he thought that actual possession of the land could not be regarded as having been taken unless the appellant was excluded from the land and since the appellant immediately without any obstruction entered upon the land and continued in possession the land was not Actually taken possession of by the Principal Agricultural College
This was plainly erroneous view for the legal position is clear that even if the appellant entered upon the land and resumed possession of it the very next moment after the land was actually taken possession of and became vested in the Government such act on the part of the appellant did not have the effect of obliterating the consequences of vesting
There can therefore be no doubt that actual possession of 19 acres 16 gunthas of waste and arable land was taken by the Tehsildar on 3rd April 1959 and it became vested in the Government
Neither the Government nor the Commissioner could thereafter withdraw from the acquisition of any portion of this land under section 481 of the Act
There will be only one set of costs
These two Civil Appeals filed by Shri Balwant Narayan Bhagde on grant of special leave by this Court arise out of a common judgment of the Bombay High Court allowing Special Civil Application No 8261968 filed by Shri M D Bhagwat and Shri E R Mahajani respondent Nos 1 and 2 in Civil Appeal No75 of 1974 and Special Civil Application No 3891971 filed by thePunjabrao Krishi Vidyapeeth hereinafter called the AgriculturalCollege to quash the order of the Commissioner 254 Nagpur purporting to give sanction for withdrawal of the acquisition by his letter dated 8 8 1968 in respect of a portion of the land comprised in Survey No 302 in village Umari District Akola
The High Court has held that possession of the land in question was taken by the Collector Akola and given to the Principal Agricultural College
It was therefore not open to the Commissioner to withdraw from the acquisition of the land under section 481 of the Land Acquisition Act 1894 as it stands amended by the Land Acquisition Maharashtra Extension and Amendment Act hereinafter called the Act
It is well settled and nothing to the contrary was canvassed before us that after possession of the land forming the subject matter of acquisition has been taken in accordance with section 16 or section 171 of the Act the land vests in the Government and the Government or any other authority is not at liberty to withdraw from the acquisition of any land of which possession has been taken vide State of Madhya Pradesh and Ors
The controversy therefore centered round the question as to whether possession of the land which was released by the Commissioner under section 481 of the Act had been taken or not
For the purpose of the Agricultural College a large area of land was acquired near Akola
The total area of this plot is 20 acres 33 gunthas
As the land was urgently required for the purpose of College action under section 17 of the Act was taken dispensing with the following of the procedure under section 5A
A notification under section 6 of the Act was issued on the 17th February 1959
A direction was given for taking possession of the land under section 171 on the expiration of 15 days from the publication of the notice under section 91
Notice under section 91 of the Act was subsequently published on 6 3 1959
After expiry of_15 days from the publication of the notice under section 91 on 24 3 1959 the land Acquisition Officer ordered the Tehsildar Akola to deliver possession of the land to the Principal Agricultural College or his nominee in the presence of the Sub Divisional Officer PWD Building and Roads Section Akola and directed him to report compliance alongwith the possession receipt obtained from the Principal by 2 4 1959
The Tehsildar took and handed over possession on 3 4 1959 and made a report
An area of 19 acre 17 gunthas which contained a double storied house of the appellant and a well etc was for the time being left and possession of the same was not taken
It appears just after the issuance of the notification under section 6 of the Act the appellant who claimed to be the tenant of the land the owners admittedly being respondents 1 and 2 in Civil Appeal No 75 of 1974 made a representation to the Government that his field in Survey No 302 should not be acquired and the acquisition should be withdrawn
He seems to have filed an application to that effect before the State Government on 18 2 1959
Some stay order thereupon is said to have been passed staying the proceeding in respect of the appellant s land
Following upon this correspondence took place and reports came to be made in April 1959 and thereafter until the withdrawal from the acquisition of 12 acres and 23 gunthas of the land in Survey No 302 was directed to be made by the Commissioner in the year 1968
As already stated the withdrawal was challenged by filing two writ petitions in the Bombay High Court
On behalf of the Governmental authorities two counters were filed in the two Writ Petitions
In the owners  petition the petitioners had stated that pursuant to the relevant notifications Government took possession of 19 acres 16 gunthas of land on 3 4 1959 And gave possession of the same to the Principal Agricultural College
The Government in its return filed in the said case denied that possession as alleged was taken from the appellant and given to the Principal Agricultural College
In paragraph 3 of Special Civil Application No 3891971 it wasstated on behalf of the Agricultural College that the Tehsildar took possession only of 19 acres and 16 gunthas out of the field as the remaining area was found in the meantime on spot inspection not to be waste or arable to which the provision of section 17 of the Act could apply
Actual possession of 19 acres 16 gunthas alongwith the other pieces of land measuring 200 acres and odd was delivered to the Principal Agricultural College
In the return filed on behalf of the Officers of the Government the contents of paragraph 3 of the petition were admitted
But it was asserted that Government had taken only symbolical possession and the physical possession of the land remained with the appellant
On consideration of the relevant materials placed before the High Court it has come to the conclusion that actual possession of the land in question was taken and handed over on 3 4 1959 on the spot  and even symbolical possession if land is occupied by a person other than the owner
would be good possession for the purpose of section 48 of the Act
Mr Sardar Bahadur Saharya learned counsel for the appellant submitted that possession of any portion of the land comprised in Survey No 302 was not taken by the Government or given to the Principal Agricultural College it was all a paper delivery of possession no notice was ever given to the appellant as to the date and time of taking possession of the land on the spot and the sym bolical delivery of possession even if any bad not the effect of divesting the appellant from the Actual possession over the land
Counsel further submitted that the order of withdrawal which is confined to 256 an area of 12 acres 23 gunthas only out of Survey No 302 leaving a further balance of 6 acres 33 gunthas to the College was valid
Mr Hathi appearing for the Government and its authorities struck to their stand that only symbolical possession was taken and actual possession remained with the appellant
Learned Attorney General for the Agricultural College followed by Mr Phadke for the owners submitted that no where the appellant had challenged the taking of possession of the land on the spot on 3 4 1959
The effect of taking possession of the land was to vest it in the Government and no portion of it could be released under section 481 of the Act
It was further submitted that there is no provision in the Act requiring the giving of any notice to the possessor of the land of the exact date and time of taking possession on the spot and notice published under section 91 is sufficient
It may be stated at the outset that there does not seem to be any dispute as respects the fact that Bhagwat and Mahajani were the owners of the land at the time of the issuance of the notification under section 4 of the Act and the appellant was in its occupation or actual possession as a tenant
There is no controversy that the Agricultural College not only needed the land in question but subsequently steps were taken for acquiring an additional area of 340 acres for the needs of the College
The Commissioner in his order dated 17th February 1959 had directed that the possession of the land may be taken on the expiration of 15 days from the publication of the notice mentioned in section 9 1  of the Act
The order recorded on 11 3 1959 shows that the notice in form D  under section 91 of the Act was published on 6 3 1959 so the possession of the land could be taken on 21 3 1959 or there after
On 24 3 1959 various other persons including the appellant appeared before the Land Acquisition Officer
Appellant s counsel prayed for time to file his written statement
He was directed lo do so by 500 pm on 24 3 1959
On this date the land Acquisition Officer recorded the order in presence of the parties including the appellant directing Tehsildar Akola to take possession of the land and hand it over to the Principal Agricultural College in the presence of SDO PWD Akola and to report compliance with possession receipt by 2 4 1959
A written statement on behalf of the appellant was filed by 420 pm on 24 3 1959
It is necessary to refer to the claim of the appellant made in the written statement aforesaid
He stated that he was interested in the field as be was its protected lessee and as such he was entitled to receive compensation that may be granted
But be said that he was entitled to the said amount
Finally the prayer in the written statement was to stay the delivery of possession of the bungalow at least for two months
It would thus be seen that in his written statement filed on 24 3 1959 the appellant did not deny the publication of notice on the spot under section 91 nor did he propose to put any impediment in the taking of possession of the land comprised in Survey No 302
He merely wanted the stay of taking possession in respect of the house
The total area mentioned in this letter is 234 acres 31 gunthas including 19 acres and 16 gunthas in Survey No 302
The Revenue Inspector endorsed handed over as above On the facts and in the circumstances of this case it is difficult to accept the argument put forward on behalf of the appellant that the taking and giving of possession on 3 4 1959 was only on paper and not on the spot
The High Court in its judgment has referred to a letter dated 7 4 1959 by the Land Acquisition Officer to the Collector Akola to say that the appellant represented before him that a stay order had been passed in respect of Survey No 302 by the Minister for Agriculture and the proceedings for taking possession of this land may be deferred pending further instructions from the higher authorities  but before any step could be taken on the representation of the appellant the land Acquisition Officer got the information that possession had been taken and given but in spite of that in the letter dated 7 4 1959 a direction was given to the Tehsildar to withhold taking possession of the field in Survey No 302 of village Umari temporarily
Thereupon the Tehsildar made a report dated 11 4 1959 stating therein possession has already been delivered to the Principal Agricultural College
Akola and the possession receipt is enclosed
In case possession of section No 302 is still to be withheld the Principal Agricultural College SDO PWD and the lessee of the field would be approached in this respect and necessary action would be taken accordingly
 As a matter of fact it would appear from the letter dated 16 4 1959 written by the Assistant Secretary of the Government of Bombay to the appellant in reply to his letter addressed to the Minister for Agriculture a copy of which was forwarded to the Collector Akola that for the first time in this letter he was requested to stay the proceedings until further orders
Then comes the letter dated 4 5 1959 written by the Land Acquisition Officer to the Collector Akola
Reference was made to all these 258 documents on behalf of both the parties
The SDO and the Land Acquisition Officer sought instructions of the Collector as to what action was to be taken in respect of land measuring 19 acres 16 gunthas out of Survey No 302 the possession of which has already been delivered to the Agricultural Department
The next letter is one from the Principal of the College to the Land Acquisition Officer dated the 27th May 1959 asking clarification of the stay order received in regard to Survey No 302
The reply is dated 4 6 1959 informing him that clarification will be made on receipt of further communication from the Collector
The next letter is dated 18 7 1959 from the Principal of the College to the Director of Agriculture stating therein that possession of the whole field No 302 excluding the area of 1 acre 16 gunthas which was also required for the purpose of the College was delivered on 3 4 1959 but in view of the Government order contained in their letter dated 16 4 1959 the land was not being cultivated and was lying as a sort of no man s land
Then comes an important letter again referred at the Bar on behalf of both the parties written by the Special Land Acquisition Officer Akola to the Commissioner Nagpur on the 13th December 1961
The difficulty in releasing the land under section 48 1 was pointed out and further in this letter it is stated Taking over possession of IA 15G of land to be acquired under urgency clause was deferred as on joint spot inspection made by the then Sub Divisional Officer Principal Agricultural College and SDO PWD Akola it was thought that acquisition of this portion which contains one double storied building some converted land etc would entail heavy expenditure
 It Would thus be clear beyond any shadow of doubt that possession was taken on the spot
On spot inspection the area of 1 acre and odd only was left out of possession
But then in this very letter there is a statement The Collector Akola was directed to stay the acquisition proceedings in respect of this field until further orders though possession receipt for section No 302 was passed on 3 4 1959 the possession physical of the entire field section No 302 of Umari is still retained by the lessee of that field and the land was not actually taken possession of by the Principal Agricultural College Akola
 Learned counsel for the appellant submitted that physical possession of the entire land comprised in Survey No 302 remained with the appellant and the possession delivered was either on paper or merely symbolical  it therefore could not prevent the release of the land from acquisition under section 481 of the Act
It is not necessary to refer to the further correspondence which ensued
It may however be stated that because of the stay order and the dispute raised in respect of the land comprised in Survey No 30 in the award prepared by the Collector on 30 1 1960 compensation for the said land was not determined
And eventually in the year 1968 an area of 12 acres 23 gunthas was sought to be released from acquisition
The question for consideration is was the release valid and proper  259 In order to appreciate what is meant by taking possession of the land under section 16 or 171 of the Act and what is the mode of taking such possession in regard to the waste or arable land with which we are concerned in this case it is necessary to refer to certain provisions of the Code of Civil Procedure hereinafter called the Code and some decisions thereon
The Code does not prescribe that in respect of a particular property there can be two modes of giving possession either to a decree holder or to an auction purchaser one  symbolical and the other actual
These Rules prescribe that if the property is in the occupation of the judgment debtor or some one on his behalf the possession shall be given if necessary by removing the judgment debtor and placing the decree holder or the auction purchaser in occupation of the same
On the other band if the property is of such a nature that the judgment debtor cannot be in actual occupation of it as for instance property in the possession of a tenant the only mode of giving possession is by proclaiming on the spot that the possession has been given to the decree holder or the auction purchaser
In some decisions the former mode of possession has been called actual 9 and the latter symbolical
Really speaking even the delivery of so called symbolical possession is delivery of actual possession of the right title and interest of the judgment debtor
It completely dispossess him
It does not affect the physical occupation of the property by a person who is not bound by the decree or whose interest is not affected by sale of the judgment debtor s interest in execution of a decree
If the property is land over which does not stand any building or structure then delivery of possession over the judgment debtor s property becomes complete and effective against him the moment the delivery is effected by going upon the land or in case of resistance by removing the person resisting unauthorisedly
A different mode of delivery is prescribed in the Code in the rules aforesaid in regard to a building with which we are not concerned in this case
Sometimes the expression symbolical or formal delivery of possession has been used in decisions to connote the actual delivery of possession effective against the judgment debtor leading to his dispossession in the eye of law even though the duration of the dispossession may be momentary or temporary
In the other the delivery is effected by the officer of the Court by going through a certain process prescribed by section 224 and proclaiming to the occupants of the property that the plaintiff has recovered it from the defendant
This is the only way in which the decree of the Court awarding possession to the plaintiff can be enforced  and as in contemplation of law 1 ILR 5 Calcutta 584260
both parties must be considered as being present at the time when the delivery is made we consider that as against defendant the delivery thus given must be deemed equivalent to actual possession
As against third parties of course this symbolical possession as it is called would be of no  avail  because they are no parties to the proceeding
But if the defendant should after this again dispossess the plaintiff by receiving the rents and profits we think that the plaintiff would have twelve years from such dispossession to bring another suit
Another Full Bench consisting again of live learned Judges of the Calcutta High Court presided over by Petheram CJ in the case of Joggobnudhu Mitter vs Purnanund Gossami and another 1 reaffirmed teh view taken in Juggobundhu Mukherjee s case ILR 5 Calsutta584in the following words  The Full Bench held that symbolic
possession obtained by the plaintiff s vendor was effective as against the judgment debtor defendant and that the suit brought against him within 12 years of that event was not barred by limitation
The plaintiffs had filed a suit to recover possession of the said land
The principal defendant who was the appellant before the Privy Council was an idol by shebiats who was in actual possession of the land by their tenants
The predecessors of the defendants in the suit were parties to an earlier mortgage action
In due course a decree was obtained
The property which according to the finding included the disputed land was sold
The mortgagee decree holders were the purchasers of the property
The land being in occupation by cultivating tenants under an apparently bona fide title they received formal possession as usual after due proclamation by beat of drum in 1898vide page 200 column 2
Lord Sumner delivering the judgment of the Board said At the same page This interruption if such it was of the defendants  actual possession was not of long duration
Hence the necessity for the present suit
Hence also the defence of adverse possession for more than twelve years before suit began
 It would thus be seen that formal possession of the land in actual occupation of the tenants which in a sense was symbolical was  characterised as interruption of defendant s actual possession
And finally the ratio of the decision of the Full Bench of the Calcutta High Court in Juggobundhu Mukherjee s case ILR 5 Calcutta 584 was approved thus at page 201 column 1  In the High Court and before their Lordships it was further argued that symbolical possession would not avail against the defendants but that only actual dispossession would interrupt their adverse possession
The High Court 1 ITR 16 Calcutta 5302 ATR 1917 Privy Council 197 2261 following a decision of the Full Bench in Juggobundhu Mukherjee vs Ram Chandra Bysack 1880 5 Calcutta 5845 CLR 548 FB held that symbolical possession availed to dispossess the defendants sufficiently because they were parties to the proceedings in which it was ordered and given
This decision is one of long standing and has been followed for many years
Their Lordships see no reason to question it or to hold that this rule of procedure should now be altered
 In the case of joint possession the decision of the Privy Council in Sri Radha Krishna Chanderji s case AIR 1917 Privy Council 1972 has been referred with approval by this Court in the case of M V section Manikayala Rao vs M Narasimhaswami and others1 in paragraph 7 at page 474 in the judgment of Sarkar J as he then was as also in paragraph 20 at page 478 is that of Ramaswami J I may just quote a sentence from paragraph 7 which says  By the delivery of symbolical possession under the order of November 6 1939 the adverse possession of the defendants was interrupted Mohammad Noor Jin the case of Ram Prasad Ojha and others vs Bakshi Bindeshwari Prasad and others2 has considered the point in his separate but concurring judgment with reference to the relevant provisions of the Code at page 147
In that case the question of defendants adverse possession arose with reference to a property which was not in occupation of any tenant
The suit for possession after the mortgage sale and delivery was being resisted by a person who was in
no better position than the mortgagor judgment debtor
The learned Judge pointed out at pages 147 and 148 When it is said that symbolical possession is not binding upon a third party but actual possession is it is only meant that when a decree bolder or an auction purchaser has been put in actual occupation of the property every body else has been ousted from it and consequently dispossessed
This is an obvious fact and not a question of law
On the other had if the Court simply proclaims that the decree holder or auction purchaser has been given possession but on account of the nature of the property they have not been placed in physical occupation of the property itself such a delivery of possession can be binding only upon those who are parties to those proceedings or on those who claim through them
The difference as I have said is due to the nature of the property and not on account of the difference in the nature of possession
The question will always be not what was the mode of delivery of possession but who has in fact been ousted by it 1  2 AIR 1932 Patna 145
262 The same learnedJudge had the occasion to consider the question again in the case ofMahabir Singh and others vs Emperor1
And that too with reference to a property which was not in possession of any tenant but of the judgment debtor
The question arose in a criminal case and the confusion arising out of the use of the expressions the actual and symbolical possession was again discussed at page 568
The writ of delivery was issued in the previous litigation under Order 21 Rule 95 of the Code and in that connection the different modes of delivery of possession over a piece of land were discussed
The momentary possession given to the purchaser was characterised as delivery of symbolical possession by the Additional Sessions Judge and not actual possession
The learned Judge pointed out at page 569 column 1 It issued its writ under Rule 95 and the peon formally put the auction purchaser in possession of the property
It is wrong to think that there Are two kinds of delivery of possession  one actual and the other symbolical independent of the nature of possession of the judgment debtor
Even if the delivery of possession was symbolical its effect against the judgment debtor was the same
 The so called paper possession or possession on paper is no delivery of possession actual formal or symbolical
A Bench of the Madras High Court consisting of Rajamannar CJ and Rajagopala Aiyangar J has stated at page 762 in the case of Pathaperumal Ambalam vs Chidambaram Chettiar2  lm15 The next question is whether it makes any difference in legal effect if possession is taken through court
The Code contemplates no notice to the judgment debtor at that stage or any objection being raised by him to the delivery of possession under Rule 95 or Rule 96 and as the full title to the property has passed from the judgment debtor to the auction purchaser he has no interest in the property to protect
 It has further been pointed out The characterisation of possession taken under Order 21 Rule 96 as paper possession is hardly justified and runs counter
to the principle on which the provision is based
Symbolical possession obtained under Order 21 Rule 96 is quite a different thing from paper possession which might correctly describe only the possession obtained by a party who being entitled to actual possession the judgment debtor himself being in possession obtains delivery of possession on paper without actual possession  or those cases where without complying with the requisites of the statute a false return is made as if they were complied with 1AIR 1934 Patna 565
2 ATR 1954 Madras 760 263 It would thus be seen that a symbolical or formal delivery  of possession as understood in law has the effect of dispossessing the judgment debtor from his right title or interest in the property
It does not dispossess the person in  actual possession in his own right not liable to be evicted under the decree or in pursuance of the auction sale
A symbolical or formal delivery of possession against the judgment debtor is giving of actual possession of the property in the eye of law and has the effect of dispossessing him although as a matter of fact he may have succeeded in resuming back possession as before shortly after dispossession
In a proceeding under the Act for acquisition of land all interests are wiped out
Actual possession of the land becomes necessary
for its use for the public purpose for which it has been acquired
Therefore the taking of possession under the Act cannot be symbolical in the sense as generally understood in Civil Law  Surely it cannot be a possession merely on paper
In the eye of law the taking of possession will have the effect of transferring possession from the owner or the occupant of the land to the Government
Section 91 of the Act reads as follows The Collector shall then cause public notice to be given at convenient places or near the land to be taken stating that the Government intends to take possession of the land and that claims to compensation for all interests in such land may be made to him
 When a public notice is published at a convenient place or near the land to be taken stating that the Government intends to take possession of the land then ordinarily and generally there would be no question of resisting or impeding the taking of possession
Delivery or giving of possession by the owner or the occupant of the land is not required
The Collector can enforce the surrender of the land to himself under section 47 of the Act if impeded in
taking possession
On publication of the notice under section 1 claims to compensation for all interests in the land has to be made  be it the interest of the owner or of a person entitled to the occupation of the land
On the taking of possession of the land under section 16 or 17 1 it vests absolutely in the Government free from all incumbrances
It is therefore clear that taking of possession within the meaningof section 16 or 171 means taking of possession on the spot
It isneither a possession on paper nor a symbolical possession as generally understood in Civil Law
But the question is what is the mode of taking possession  The Act is silent on the point
Unless possession is taken by the written agreement of the party concerned the mode of taking possession obviously would be for the authority to go upon the land and to do some act which would indicate that the authority has taken possession of the land
It may be in the form of a declaration by beat of drum or otherwise or by hanging a written declaration on the spot that the authority 10 SC 75 18 264 has taken possession of the land
The presence of the owner or the occupant of the land to effectuate the taking of possession is not necessary
No further notice beyond that under section 91 of the act is required
When possession has been taken the owner or the occupant of the land is dispossessed
Once possession has been taken the land vests in the Government
In the instant case in agreement with the findings of the Court I hold that the eye of law actual possession of the land in question was taken by the Tehsildar on the spot and the possession was handed over to the Principal of the Agricultural College
It appears that the appellant on his part thought that he never gave up possession and claimed to continue in actual possession of the disputed land because of the stay order passed by the Government on or about the 16th April 1959
Viewed in the light of the discussion of law I have made above it would be noticed that possession of the land in any event was taken on the spot and it vested in the Government
The appellant s resuming possession of the land after once it was validly taken by the Government had not the effect of undoing the fact of the vesting of the land in the Government
The Government or the Commissioner was not at liberty to withdraw from the acquisition of any portion of the land of which possession had been taken under section 481 of the Act
In the result the appeals fail and are dismissed with costs
One set of hearing fee
VPS Appeals dismissed


Summary:
For the purpose of acquiring land for an Agricultural College a notification was issued under section 4 of the Land Acquisition Act 1894 in January 1959 with respect to several pieces of land one of which belonged to the res pondents and was in possession of the appellant as tenant
After the issue of the notification under section 6 in February 1959 the Commissioner directed that possession of that land may be taken under section 171 on the expiry of 15 days from the publication of the notice under section 91
On March 24 1959 the appellant filed a statement before the Land Acquisition Officer
In that statement he did not deny the publication of notice on the spot under section 91 nor did he put any impediment to the taking of the land
He merely wanted the compensation amount to be paid to him and wanted stay of the taking possession of his house on the land
The Land Acquisition Officer passed orders in the presence of the appellant directing the Tahsildar to take possession of the land and hand it over to the Principal of the Agricultural College
The Tahsildar went to the spot inspected the land for the purpose of determining what part was waste and arable and should therefore be taken possession of and took possession of the land leaving out the small portion containing the house of the appellant and handed over possession of the land so taken over to the Principal of the Agricultural College
The appellant was not present at the time when the Tahsildar took possession
There was thereafter correspondence between the appellant and the Government
and various reports had been made by the officers of the Government and on April 16 1959 a stay order was passed by the Government
On December 13 1961 the Land Acquisition Officer wrote to the Commissioner that possession of the land was still with the appellant and on August 8 1968 withdrawal from the acquisition of that part of the land under section 481 of the Act was directed by the Commissioner
The respondents and the Agricultural College filed writ petitions in the High Court challenging the release of the land
The High Court allowed the petitions holing that possession of the land was taken even though the Government took the stand that they had taken only symbolical  possession and given to the Principal of the College and that therefore it was not open to the Commissioner to withdraw from the acquisition under section 481 as amended by the Land Acquisition Maharashtra Extension and Amendment Act
Dismissing the appeal to this Court HELD  Per Curiam  Neither the Government nor the Commissioner could withdraw under section 481 from the acquisition of any portion of the land which had been taken over by and vested in the Government
253 F Per P N Bhagwati and A C Gupta JJ  When Government proceeds to take possession of the land acquired by it under the Act
it must take actual Possession since all interests in the land are sought to be acquired by it and there is no question of taking symbolical  possession as understood 251 under the CPC Nor would possession merely on paper be enough
How such actual possession may be taken would depend on the nature of land
It is not an absolute and inviolable rule that merely going on the spot and making a declaration by beat of drum or otherwise would be sufficient to constitute taking possession of land in every case
It is also not strictly necessary as a matter of legal requirement that notice should be given to the owner or occupant of the land that possession would be taken at a particular time though it may be desirable to do so in order to eliminate the possibility of a fraudulent or collusive transaction of talking of mere paper possession without the occupant or the owner ever knowing about it
252E H 153A B On the facts and circumstances of the present case the Tahsildar had taken actual possession of that part of the land which was waste or arable and handed it over to the Principal of the College
The Land Acquisition Officer thought that actual possession could not be regarded as having been taken unless the appellant was excluded from the land and since the appellant without any obstruction entered on the land and continued in possession he mistakenly stated that actual possession was not taken
The legal position is that even if the appellant entered upon the land after actual possession had been taken by and the land vested in the Government the appellant s possession would not obliterate the consequence of vesting in the Government
253 B E Discussion regarding delivery of symbolical  and actual  possession under the CPC is not necessary for the disposal of the appeals 252 D Per Untwalia J  1 Under the CPC a symbolical or formal delivery of possession has the effect of dispossessing the judgment debtor from his right title or interest in the property although as a matter of fact he may have succeeded in resuming possession shortly after dispossession
It does not however dispossess the person in actual possession in his own right not liable to be evicted under the decree or in pursuance of the auction sale
263A B 2When a public notice under section 91 of the Act is published at a convenient place or near the land to be taken that Government intends to take possession ordinarily there would be no question of resisting or impeding the taking of possession
Delivery of possession by the owner is not required and the Collector can enforce surrender under section 47 if impeded
On taking possession either under section 16 or section 171 the land vests absolutely in the Government free from all encumbrances
Therefore in a proceeding under the Land Acquisition Act for acquisition of land all interests are wiped out and hence the taking of possession must be taking actual possession on the spot and not symbolical possession and surely it cannot be a possession merely on paper
263E G 3As to the mode of taking possession the Act is silent
Unless possession is taken by the written agreement of the party concerned the mode of taking possession obviously would be for the authority to go upon the land and do some act which would indicate that the authority has taken possession of the land
It may be in the form of a declaration by beat of drum or otherwise or by hanging a written declaration on the spot that possession has been taken
The presence of the owner or the occupant is not necessary to effectuate the taking of possession
263H 264A 4In the instant case actual possession of the land was taken by the Tahsildar on the spot and the possession was handed over to the Principal of the College
The Land Acquisition Officer s statement that the land was not actually taken possession and the Government s stand that only symbolical possession was taken should be viewed from the correct legal position
So viewed the appellant s resuming possession after once the land was validly taken by the Government would not have the effect of undoing the fact if vesting in the Government
264B E F 252