BALWANT NARAYAN BHAGDE

M. D. BHAGWAT & ORS.

April 23, 1975

[P. N. BHAGWATI, A. C. GUPTA AND N. L. UNTWALIA, JJ.]

Land Acquisition Act (1 of 1894) ss. 9(1), 17(1) and 48(1)-Possession taken of acquired land--Occupant resurnir1g possession-Effect of-If Governnient can withdraiv /ro1n the acquisition.

For the purpose of acquiring land for an Agricultural College a notification was issued under s. 4 of the Land Acquisition Act, 1894, in January 1959, with respect to several pieces of land one of which belonged to the respondents and was in possession of the appellant as tenant.

After the issue of the notification. under s. 6, in February 1959, the Commissioner directed that possession of that land may be taken Under s. 17 ( 1) on the exJriry of 15 days from the publication of the notice under s. 9(1).

On March 24, 1959, the appellant :flled a statement before the Land Acquisition Officer.

In that statement, he did not deny the publication of notice on the spot under s. 9( 1) 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 Iand.

The Land Acquisition Officer passed orders in the presence of the appellant directing the Tnhsildar 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 deter:mining \vhat 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 Agriculturai Coilege. The appellant was not present at the time when the Tahsildar took posiession. There was, thereafter, corrcsnondence 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 \Vas passed by the Government.

On December 13, 1961, the Land Acquisition Officer wrote to the Commissioner that pos_session of the land was still \Vith the appellant. and on August 8, 1968, withdrawal from the acquisition of that part of the land under s .. 48(1) 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 a11owed the petitions holing that posseion of the land was taken (even though the Government took the stand that thev had taken onlv 'svmbolical' oosse-sion) and given to the Principal of the College and that, therefore, it was not open to the Commissioner to withdraw from the acquisition under s. 48 ( 1) as amended by the Land Acquisition (Maharashtra Extension and Amendment) Act.

Dismissing the appeal to this Court,

H HELD : ·(Per Curiam) : Neither the Government nor the Comn1issionet could withdraw under s. 48(1) from the acquisition of any portion of the land v1hich had been taken over by and vested in the Government. [253-El

(Per P. N. Bhagv;'ati and A. C. Gupta JJ) : When Government proceeds to take possession of the land acquired by it under the Act. it must take actual posses:ion since all interests in the land are sought to be acquired by it, and there is no question of taking 'symbolical' possession as understood

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' I

B. N. BHAGDE V. M. D. BHAGWAT

under the C.P.C.

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 taking of mere paper possession, without the occupant or the owner ever knowingabout it. [252E-H, 253ABl

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 statea that actual possession was not taken. The legal position is that even ff the appellant entered upon the land after actual possession had been taken by and the land vested in, the Government, the appellanfs possession would not obliterate the consequence of vesting in the Government. (253-B-E]

[Discussion regarding delivery of 'symbolical' and 'actuaJ' possession under the C.P.C. is not necessary for the disposal of the appeals].

[252-D}

(Per Unt\valia J.) : (1) Under the C.P.C., 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] ·

(2) When a public notice under s. 9(1) of the Act is published at a convenient place or near the land to be taken that Government intends--tcf take possession, ordinarily there would be no question of resisting or impeding the taking of possession. Delivery of possession by the owner isnot required and the Coliector can enforce surrender under s. 47 if impeded.

On taking possession either under s. 16 or s. _17(1), the land ests absolutely in the Government free from q.11 encumbrances.

Therefore, in a proceeding under the Land Acquisition Act for acquisition of land all intere!t& are wiped out and hence, the taking of possession must be taking actual possession on th~ spot and not symbolical possession ; and surety it cannot be a possession merely on paJ>Cr.

[263E-G]

(3) As 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 a_nd do some act which woul~ indicate that the authority has taken

posess1on of th~ land. It may_ be 1n te form of a declaration by beat of' drum ?r otherwise or by hanging a wntten 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]

( ~) In the instant case, actual possession of the land was taken by the H Tahstldar on the spot and the. possession was handed over to the Principal bf the College.

The Land Acquisition Officer's statementthat the land was not act_ually taken possession and te Government's stand that only symbolical possession was taken, should be viewed from the correct legal P'Osition.

So viewed, the appellant's resuming possession after once the land \vas validly take_n by the Government would not have the effect of undoing the fact of vesting 10 the Government.

[264B, E-F]

A CIVIL APPELLATE JuR'SDICTION : Civil 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 Sp!. Civil Applications Nos. 826 of 1968 & 389 of 1971.

Sardar Bahadur Saharya and Vishnu Bahadur Saharya, for the appellants.

M. N. Plzadke and A. G. Ratnaparkhi, for respondent No. 1 and 2 (In Appeal No. 75/74).

Niren De, Attorney General of India, M. N. Phadke and A. G: Tl.atnaparkhi, for respondent No. 1 (In Appeal No. 76/74).

K. L. Rathi and M. N. Shroff, for respondents Nos. 3-6. (Ii; Appeal No. 75/74) and respondent No. 3 (in appeal No. 76/74).

The Judgment of P. N. Bhagwati and A. C. Gupta, JJ. was delivered by Bhagwati, J. N. L. Untwalia, J. gave a separate Opinion.

BHAGWATI, J.-Wc agree with the conclusion reached by our brother Untwalia, J., as also with the reasoning on which the conclusion is based.

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 XX! of the Code of Civil Procedure, is not necessary for the disposal of the present appeals .a, nd we do not wish to subscribe to what has been said by our learned brother Untwalia, .T., 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 swe 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.

There can be no question of laking 'symbolical' G possession in the sense understood by .iudicial decisions under the Code of Civil Procedure.

Nor would possession merely on paper be enough.

What the Act contemplates as a necessary condition of vesting of the ia, nd in the Government is the taking of actual possession of the land.

How such possession may be taken would depend on the nature of the land. Such possession would have to be taken as the nature of the land admit• of. There can be no hard and H fast rule laying down what , apt 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 spot and making a declaration by bea, t of drnm or otherwise would be sufficient to constitute taking of possession of Tand in every case.

But here, in our opinion, since the land was laying fallow and there was no crop on it at the material time, the act of the Tehsildar in

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B. N. BHAGDE .v. M. D. BHAGWA'l 253

going on the spot and inspecting the land for the purpose pf deter- A mining what part was waste and arable and should, therefore, be taken possession of a, nd determining its exteut, was s4fficient to constitute taking of possession. 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 B 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 desira, ble 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 w.a.ste or arable arid handed it over to the Principal of the Agricultural College. It is true that the Special Land Acquisic D tion Officer in his Jetter dated f3th December, 1961 to the Commissioner stated that possession of the entire land was still with the appellant and itwas not actua, lly taken possession of by the Principal, Agricultural College. But it is obvious that this £tatement was made by the Special Land Acquisition Officer because he thought that actual possession of the la, nd could not be regarded as having been taken, unless the appellant was excluded from the land and since E -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 apjlellant entered upon the land and resumed possession of it the very next moment after the land was actually taken possession of and became F vested in the Government, such act on the part of the ; ippellant 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 a.nd ara, ble land w.as taken by the Tehsildar on 3rd April, 1959 and 1t became vested m the Government. Neither the Government nor the Commissioner conld thereafter withdraw from the acquisition of any portion of this land under s. 48 (1) of the Act G

The result is that the appeals fail and are dismissed with costs.

There will be only one set of costs.

UNTWAL!A, J.-These two Civil ApPeals filed bv Shri Balwant Narayan Bbagde . on grant of special leave by this Court arise H out of a common Judgment of the Bombay High Court allowinrr Special Civil Application No. 826/1968 filed by Shri M DM

B~gwat and Shri E. R.

Mahaiani, respandent Nos. 1 and. 2 j~ Civil ppeal No. 75 of 1974 and Special Civil Application No. 389/ 1971 tild by the Punjabrao Krisbi Vidyapeeth-(hereinafter called the Agncultural Collge )-to quash the order of the Commissioner ,

A Nagpur purporting to give sanction for withdrawal of the acquisition by bis letter dated 8-8-1968 in respect of a portion of the land comprised in Survey No. 30/2 in village Umari, District Akola.

The High Court hp, s held that possession. of the land in question wa~ taken by, the Collector, Akola and given to the Principal, Agricultural College. It was, therefore, not open to the Commissioner to withdraw B from the acquisition of the land under section 48 ( 1) of the Land Acquisition Act, 1894 as it stands amended by the Land Acquisition (Maharashtra Extension and Amendment) Act-hereinatfer called the Act. It is well-settled and nothing t.o 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 1 7 ( 1) of the Act, the la, nd vests in the Government and the Government C or any other authority is not at liberty to withdraw from the acquisition

0f any land of which possession has been taken; vide, Slate of Madhya Pradesh and Ors. v. Vishnu Prasad Sharma and Ors.(') and Lt .. Governor of Himacha/ Pradah and Another v. Sri Avinash Sharma(~). The controversy, therefore, centered round the question as to whether possession of the land which was released by the Commissioner under D section 48 (1) of the Act had been tp, ken or not.

For the purpose of the Agricultural College a large area of land was acquired near Akola. A notification under section 4 of the Act was issued on the 24th January, 1959 by which several pieces of land

mesuring 236 acres 7 gunthas ( 40 gunthas make one acre) were sought to be acquired including 20 acres 32 gunthas of Survey No.

E 30/2 in Village Umari, Pargana Akola.

The total area of this plot is 20 acres 33 gunthas. A separae notification under-section ( 4) wa, s issued for acquisition of the remaining one guntha which contained a well. 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 SA.

The Sob-Divisional F Officer, Akola wa, s appointed the Land Acquisition Officer to perform the functions of the Collector under the Act.

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 17 (1) on the expiration of 15 days from the publication of the notice under section 9(1). Notice under section 9(1) of the Act was subsequently published on 6-3-1959. After expiry of 15 days from the publication G of the notice under s"ction 9(1) on 24-3-1959 the Land Acquisition

Officer ordered the Tchsildar, Akola to deliver possession of the land to the Principal, Agrknltural College or his nominee in the presence of the, Sub-Divisional Officer. P.W.D. Building and Roads Section, Akola and directed him to rep.ort compliance alongwitb the possession receipt obtained from the Principal by 2-4-1959. The Tehsildar took and ha.oded over possession on 3-4-1959 and made a report. Out of H 20 acres 33 gunthas of land comprised in Survey No. 30/2 possession was taken and handed over in regard to 19 acres and 16 gunthas only. An area of 1 acre 17 gunthas which contained a double storied house of the appellant and a we11 etc. was for the time being left and possession of the same was not taken.

'[196<\1 3 S.C.R. 557. '[1970] 2 s.c.c. 149.

It appears, just after the i'ssuance 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. 30/2 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 cres and 23 gunthas of the land in Survey No. 30/2 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.

The appellant filed a counter in tbe Writ application of the owners but did not do so in answer to the Writ application of the College.

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 a, nd gave possession of the same to tbe 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, Agricultur; i1 College.

In paragraph 3 of Special Civil Application No. 389/1971 it was stated 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 ara.ble to which the provision of section 17 of the Act could apply.

Actual possession of 19 acres 16 gunthas a!ongwith the other pieces of land measuring 200 acres and odd was delivered to the Principal, Agriculfural, College. Jn the return filed on behalf of the Officers of the Government the contents of paragmph 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 tha, t actual possession of thJ: land in question was taken and handed over on 3-4-1959 on the spot; and, even •ymbolical 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 Bahad1;1r Saharya, lean:ied counsel for the appellant, submitted that possess10n of any portion of the land comprised in Survey No. 30/2 was not taken by the Government or given to the H Prin.cipal, Agric_ultural 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 symb?lica~ delivery of possession, even if any, had not the effect of d1vestmg the ppellant from the a, ctual possession over the land, Counsel further submitted that the order of withdrawal which is confined to

A an area of 12 acres 23 gunthas only out of Survey No. 30/2 leaving a further balance of 6 acres 3 3 gunthas to the College was v; ilid.

Mr. Hathi appearing for the Government and its authorities struck to their stand that only symbolical possession was iaken and ; i.ctual possession remained with the appellant. Learned Attorney General for the Agricultural College, followed by Mr. Phadke for the owners, B submitted that no where the appellant had ch; t.llenged the taking of possession of the land on the spot on 3-4-1959.

The effect of taking posession of the rand was to vest it in the Government and no portion of it could be released under section 48 (1) 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 ta.king possession on the spot and notice published C under section 9(1) is sufficient.

It may he stated at the outset that there does not seem to he any dispute as respects the fact that Bhagwat and Mahajani were the owners of the land , a, t the time of the issuance of the notification ·• under section 4 of the Act and the appellant was in it; occupation or D actual possession as a tenant. It is also not in dispute that possession was taken on 3-4-1959 in respect of the large portion of land measuring more than 200 acres. 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.

E 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 9(1) of the Act was published on 6-3-1959, so the possession of the land could be taken on 21-3-1959 or there- F after. Some persons filed their written statement showing their interest in the land to be acquired and their claims for compem, a, tion on 11-3-1959. 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 to do so by 5.00 p.m. on 24-3-1959.

On this date the land Acquisition Officer recorded the order in presence of the parties including the G a, ppellant directing Tehsildar Akola to take possession of the land and hand it over to the Principal, Agricultural College, in the presence of S.D.O., P.W.D .. Akola and to report compliance with possession receipt by 2-4-1959. A written statement on behalf of the appellant was filed by 4.20 p.m. on 24-3-1959.

Tt 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 he was its protected lessee and as such he was entitled to receive compensation that mav be wanted. The amount of claim put forward in respct of the field in Survey No. 30/2 by Bhagwat and Mahajani was stated to be acceptable to the appellant. But he said that he was entitled to the said am'ount.

In respect of the bungalow the appellant stated that it was his residential house, it was not necessary to be acquired, dispensing with the provision of section 5A in A respect of the house was not legal, therefore, the proceeding being not in a, ccordance with law be dropped.

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 9 ( 1) nor did he propose to B put any impediment in the taking of possssion of the land comprised in Survey No. 30/2. He merely wanted the stay of taking possession in respect of the house.

The Principal of the Agricultural College wrote a letter to .the Sub- Division Officer and Land Acquisition Officer, Akola on the 6th April, 1959 with an endorsement of the Revenue Inspector who it appears C was the Tehsildar, stating therein that he had ta)cen J?OSsession ot the fields mentioned below in the letter on the 3rd April, 1959, in presence of the Sub-Divisional Officer, P.W.D. and the Naib Tehsildar, Akola.

The total area mentioned in this letter is 234 acres 31 gunthas including 19 acres a, nd 16 gunthas in Survey No. 30/2. The Revenue Inspector endorsed "handed over as above." D

On the facts and in the circumstances of this case it is difficult to accep\ the argument put forward on behalf of the appellant that the taking 1>11d 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. 30/2 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, tbe land Acquisition Officer. got the information that possession lrnd been taken and given bnt in spite of that in the letter dated 7-4-1959 a direction w; a, s given to tbc Tehsildar to withhold taking possession of the field in Survey No. 30/2 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

Collee, Akola and the possession receipt is enclosed. In case possession of S. No. 30 /2 is still to be withheld, the Princip11l, Agricultural College, S.D.O., P.W.D. 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 t"6-4-1959 written bv the Assistant Secretary of the Government of Bombav to the 11ppellant in reply to his letter addressed to tlie Minister for Ari culture a copy of which was forwarded to the Collector Akola that for the first time in this letter he was requested to stay th~ proceedings until further orders.

No stay order of the State Government seems to ha.vc rece?ved earlier and prior to the taking of possession of the land m question .

. . Then comes the letter d, a, ted 4-5·1959 written by the Land Acquis1t1on Officer to the Collector, Akola. Reference 'Mas made to al! these

A documents on behalf of both the parties. The S.D.O. 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. 30/2 "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 Acquisilion Officer dated the B 27th May, 1959 asking clarification of the stay order received in regard to Survey No. 30/2.

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 C Collge to the Director of Agriculture stating therein that possession of the whole field no. 30/2 excluding Lhe 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. 'f

D Then comes an important letter again referred at the Bar on behalf of both the parties written by the Special Land Acquisition Oflicer, 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 1A-15G of land to be acquired under urgency clause was deferred as on joint E spot inspection made by the then Sub-Divisional Officer. Principal Agricultural College and S.D.O. (P.W.D.) 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 I acre and odd only F was left out of f<Jssession.

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 S. No. 30/2 was passed on 3-4-1959, the possession

(physical) of the entire field S. o. 30/2 of Umari iS still retained by the lessee of that field and the land was not actually iaken possession of by the Principal, Agricultural College, Akola." Learned counsel for G the appellant submitted that physical possession of the entire land

comprised in Survey No. 30/2 remained with the appellant and the possession delivered was either on paper or merely symbolical ; it, therefore, could not prevent the release of the 1.nd from acquisition under section 48 (1) of tll'e Act. ·

It is not nec(:ssary to refer to the further correspondence which H 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. 30/2 in the award prepared by the Collector on 30-1-1960 compensation for the said la.nd was not dctermfoed.

And eventually in the vcar 1968 an area of 12 acres 23 gunthas was sought to be released from accuisition.

The question for consideration is-was the release valid and proper?

In order to appreciate what is meant by taking possession of the land under section 16 or 1 7 ( 1) 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 c, a.]led the Code, and some decisions thereon. Order 21, Rules 35, 36, 95 and 96 of the Code prescribe two modes of delivery of possession based upon the nature of the property concerned. The Code does not prescribe that inrespect ol a particular property there can be two mo<.'es of giving possession either to a decree-holder or to an auction-purchaser one

"ymbolical" l\Ild the other "actual".

These Rules prescribe that if the property is in the occupation of the judgmentdebtor 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 auctionpurchascr in occupation of the same. On the other hand if the property is of such a nature that the judgment-debtor q1, nnot 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" and the latter "symbolical". Really speaking even the delivery of so-qi)led "symbolical" possession is delivery of "actual" possession of the right.title and interest of the judgment-debtor.

It completely dispossesses 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 i\as been used in decisions to connote the actual delivery of possession effective against the fodgment-debtor leading to his dispossession in tbe eye of law. even though the duration of the dispossession may be momentary or temporary.

Jn Juggobundhu Mukherjee and others v. Ram Chander Bvsack(') Garth, C. J. delivering the judgment of the Full Bench consisting of five Judges pointed out at page 588 :

"Iri. the one case, the delivery of the land is to be madt by placing the plaintiff in direct possession. In the other the i!elivery is effected by the. officer of . the Court by going through a certain process prescribed by s. 224, and proclaiming to the. occupants of the property that the plaintiff has rec?vered 1t from the defendant.

This is the only way in

whch. the decree_ .of the Court, awarding possession to ihe __ plamt1ff, an be enforced ; and as, in contemplation of Jaw,

( 1) I.LR. s Calcutte 584.

-~-~

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 actua, l posse5.sion."

"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 five learned Judges of the C Calcutta High Court presided over by Petheram, C.J ., in the case of Joggobnudhu Mitter v. Purna1111nd Gossami and another (') reaffirmed teh view taken in luggobundhu Mukherjee's case (l.L.R. 5, Calsutta, 5 84) in the following words :

"The Full Bench held that symbolica) possession obtained by the plaintiff's vendor was effective as against the judgmentdebtor, defendant, and that the suit brought against him within 12 years of that event was not barred by limitation."

The facts of the case of Sri Radha Krishna Chanderji v. Ram Bahadur and others('), are these : The dispute related to 150 bighas of land.

The plaintiffs had filed a suit to recover possession of the said E land. The principal defendant _who was the appelfant before the Privy Council was ap 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 F were the purchasers of the property. "The l;\Ild being in occupation by cultivating tena!J.ts under an apparently bona fide title they received formal possession as usual after due proclamation by beat of drum in 1898."-(vide page 200 column 2).

Lord Sumner delivering the judgment of the Board said , a, t the same page "This interruption, if such it was, of the defendants' actnar J)ossess!on was not of long duration. Hence the necessity for the present suit. Hence also the defence G 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 tenant•, which in a sense was symbolical, was characterised as interruption of _defendant's actual possession. And finallv the t11tio of the decision of the Full Bench of the Calcutta High Court in lu11gobundhu Mukherjee's case (I.L.R. 5, Calcutta, 584) was approved thusat page 201, column 1 :

"In the Hi!(h Court and before their Lordships it was further argued thal symbolical possession would not avail against the defendants, but thatonly actual disoossession wouM interrupt their adverse possession. The High Court

(') I.LR. 16 Cakntta 530. (') A.LR. 1917 Privy Council 197 (2).

following a decision of the Full Bench in J uggobundhu A Mukherjee v. Ram Chandra Bysack-(1880) 5 Calcutta, 584=5 C.L.R. 548 (F.B.) held that symbolical possession availed to disposess 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 B to question it or to hold that this rule of procedure should now be altered."

Jn the case of joint possession the decision of the Privy Council in Sri Radha Krishna Chanderji's case [A.LR. 1917 Privy Council, 197(2)] has been referred with approval by this Court in the case of M. V. S. c Manikayala Rao v. M. Narasimhaswami and others(') in paragraph 7 at page 474 in the judgment of Sarkar, J, as he then was, as a, lso in paragraph 20 at page 4 78 is that of Ramaswami, J. I may just quote a, sentence from paragraph 7 which says :

"By the delivery of symbolical possession under the D order of November 6, 1939, the adverse possession of the defendants was interrupted."

Mohammad Noor, J. in the case of Ram Prasad Ojha and others v.

Bakshi Bindeshwari Prasad and others( 2 ) .has considered the point in his separate but .concurring judgment with reference to the relevant provisions of the Code at page 14 7.

In that case the question of E 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 Qy a µ<:rson who was in. no better position than the mortgagor judgment-debtor.

The learned Judge pointed out at pages 14 7 and 148 :

"When it is said that symbolical possession is not bindiag upon a third party but actual possession is, it is only meant that when a decree-holder 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 ha, nd ff the Court simply proclaims that the decree-holder or auction-purchaser has been given possession bnt on account of the nature of the property tbey have not been placed in physical occupation of_ the property itself, such a delivery of pbssession can be binding only upon those who are parties to th'?se proceedings or on those who claim through them. The difference, as I !mve sa, id, is due to the riature 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) A.T.R. 1966 S.C. 470. (') A.I.R. 1932 Patna 145.

A The same learned Judge had the occasion to consider the question again in the case oI Mahabir Singh and others v. Emperor('). 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 B 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 chara, cterised as delivery of symbolical possession by the Additional Sessions Judge and not actual possession. The learned Judge pointed out C 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 a, nd the other symbolical independent of the nature of possession of the judgmentdebtor. 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 Madr; i, s High Court consisting of Rajamannar, C.J. and Rajagopala Aiyangar, J. has stated at page 762 in the case of Pathaperumal Amba/am v. Chidambaram Chettiar( 2 ) :

"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 juagment-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-d.,; btor 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 fahe return is made as if they were complied with."

(') A.l.R. 1934 Patna 565. (') A.!.R. 1954 Madras 760,

;·. B, N. Bl:IAGD!l y, ~. D, l!W.<iWAT (Untwlllia, J,) 2§3

It would thus be seen .that a symbolical or formaLdehvery of A possession: as understood 'in law has the effect of dispossessing the judgment-debtor lrom hiS right title. or -interest in the property, -'"It does Mt di.Spossess 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 forrtial delivery of possession'against the judgment-debtor is giving of actual possession of the property

'B in the .. eye of law and has the effect Df 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 oqt. Actual possession of the _ land becomes necessary for its use for the public purpose for which it has been acquired. C Therefore, the taking of possession under the Act cannot be ''sym~ bolical" in the sense as generally understood in Civil' Law, Surely it cannot be a possession merely on paper. What is required under the Act is the taki.ng of , a, ctual possession on the spot. In the eye. of law the taking of possessiori will _have the effect of transferring possession from the owner or the occupant of the land to th\I Govem- 'D ment.

Section 9 (1) of the Act reads as follows :

"The Collector shall then cause public notice to given at convenient places or near the land to be taken, stating that the Government intends to take possession of 'E 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 conve11ient _place or .neat 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. Deli- F very 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 4 7 of the Act if impeded jn 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 G 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 meaning of section 16 or 17 ( 1) means taking of possession on the spot. It is neither 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 H 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. [t 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 15-18

A has taken pos_session of the land.

The , presence of the own~ or the occupant of the land to effectuate the taking of possession not

necessary~ No further notice beyond that under sec1ion 9 ( 1) .. of the act is required.

When possession has been ta, ken, the owner or the occupant of the land is dispossessed.

Once possession has been taken the land vests in the Government.

B In the instant case in agreement with the findings of the High Court, I hold that in the eye of law actual possession of the Jarid in question was taken by the Tehsilda.r 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 actUill possession of the C disputed land, because of the stay order passed by the Government on or about the 16th April, 1959. It is in the background of the law discussed above that the statement _that "the possession (physical) of the entire field S. No. 30/2 of Umari is still retained by the lessee pf th~ field and the land was not actually taken possession of by the Principal Agricultural College, Akola", occurring in the letter D dated the 13th December, 1961 written by the Special Land Acquisition Officer, Akola to the Commissioner, Nagpur has got to be appreciated and so also the stand .of the Government in its counter as to what was meant by ta, king of symbolical possession.

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 E the spot and it vested in the Government.

The appellnt's resuming possession of the land .!\fter once it was validly taken by the Government had not the effect of undoing the fact of tbe vesting of the land in the Government. The Government or tbe Commissioner was not at liberty to withdraw from the acqnisition of any portion of the land of which possesion had been taken, under section 48 ( 1) of the Act.

F In the result the appeals fail and are dismissed with c-0sts.

One set of hea, ring fee.

V.P.S.

Appeals dismissed.