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PETITIONER: BALWANT NARAYAN BHAGDE

       Vs.

RESPONDENT: M.   D. BHAGWAT & ORS.

DATE OF JUDGMENT23/04/1975

BENCH: BHAGWATI, P.N. BENCH: BHAGWATI, P.N. GUPTA, A.C. UNTWALIA, N.L.

CITATION:  1975 AIR 1767            1975 SCR  250  1976 SCC  (1) 700

ACT: Land Acquisition Act (1 of 1894) ss. 9(1), 17(1) and  48(1)- Possession   taken   of  acquired   land-Occupant   resuming possession-Effect  of-If  Government can withdraw  from  the acquisition.

HEADNOTE: 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  res- pondents  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 expiry of 15  days  from the  publication of the notice under s. 9(1).  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 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 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 s. 48(1) of the Act, was directed by  the

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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 s. 48(1) 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  s.  48(1)  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  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 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  C.P.C.  is  not  necessary  for  the disposal of the appeals], [252-D] (Per  Untwalia 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 to take possession, ordinarily there

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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 s. 47 if  impeded.  On taking possession either under s. 16 or  s. 17(1), 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] (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 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] (4)In 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

JUDGMENT: CIVIL APPELLATE JURISDICTION:   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 Spl.  Civil Applications Nos. 826 of 1968 & 389 of 1971. Sardar  Bahadur Saharya and Vishnu Bahdur Saharya,  for  the appellants. M.N.  Phadke 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. Ratnaparkhi, for respondent No. 1 (In Appeal No. 76/74). K.L.  Rathi and M. N. Shroff, for respondents  Nos.  3-6. (In  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.-We  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 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

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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.   There  can  be  no  question  of  taking ’symbolical’ possession in the sense understood by  judicial 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 ]And in the Government is the taking of actual possession of  the land. 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.  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 253 going on the spot and inspecting the land for the purpose of determining  what  part  was waste and  arable  and  should, therefore,  be  taken  possession  of  and  determining  its extent,  was sufficient 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 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

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Government.   Neither  the Government nor  the  Commissioner could  thereafter  withdraw  from  the  acquisition  of  any portion of this land under s. 48(1) of the Act. The  result is that the appeals fail and are dismissed  with costs.. There will be only one set of costs. UNTWALIA,  J.-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. 826/1968 filed by Shri M.  D. Bhagwat and Shri E. R. Mahajani, respondent Nos. 1 and 2  in Civil Appeal No.75 of 1974 and Special Civil Application No. 389/1971 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. 30/2 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 48(1) 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  17(1)  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. v. Vishnu Prasad Sharma and Ors.(1) and Lt. Governor  of  Himachal Pradesh and Another  v.  Sri  Avinash Sharma(2).   The controversy, therefore, centered round  the question  as  to whether possession of the  land  which  was released by the Commissioner under section 48(1) of the  Act had been taken 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 measuring 236 acres 7  gunthas  (40 gunthas make one acre) were sought to be acquired  including 20  acres  32 gunthas of Survey No. 30/2 in  Village  Umari, Pargana  Akola.  The total area of this plot is 20 acres  33 gunthas.   A  separate notification  under-section  (4)  was 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 5A.  The Sub-Divisional Officer, Akola was 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 of the notice  under section  9(1)  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,  P.W.D. Building and Roads Section, Akola and directed him to report

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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.  Out  of  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 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. 1[1966] 3 S.C.R. 557. 2[1970] 2 S.C.C. 149. 255 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.  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 acres 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 the 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  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. 389/1971 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. 30/2 was not  taken  by  the Government or given to the Principal, Agricultural  College, it  was  all a paper delivery of possession, no  notice  was

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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.  30/2 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 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 taking possession on the  spot  and notice published    under section 9(1) 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.   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.      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   after. Some  persons  filed their written statement  showing  their interest  in  the land to be acquired and their  claims  for compensation  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 lo 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 appellant 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. 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.  The amount of claim put forward in respect of  the field in Survey No. 30/2 by Bhagwat and Mahajani was  stated to be acceptable to the appellant.  But be said that he  was entitled to the said amount.  In respect of the bungalow the appellant  stated that it was his residential house, it  was not nece-

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                           257 ssary  to  be  acquired, dispensing with  the  provision  of section  5A  in  respect  of  the  house  was  ’not   legal, therefore,  the proceeding being not in accordance 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 put any impediment in the  taking of possession 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 SubDivision Officer and Land Acquisition Officer,  Akola on  the 6th April, 1959 with an endorsement of  the  Revenue Inspector who it appears was the Tehsildar, stating  therein that  he had taken possession of 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 and 16 gunthas in Survey  No. 30/2.   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.  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,  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. 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 College.  Akola and the  possession receipt is enclosed.  In case possession  of S.  No.  30/2  is  still  to  be  withheld,  the  Principal, 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 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. No stay order of the State Government seems to have received earlier and prior to the taking of possession of the land in question. 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  S.D.O.  and the  Land  Acquisition Officer sought  instructions  of  the Collector  as to what action was to be taken in  respect  of

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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,  Acquisition  Officer dated  the 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 College to the Director of Agriculture stating therein  that possession of the whole field no. 30/2 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 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 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 S. No. 30/2 was passed on 3-4- 1959,  the possession (physical) of the entire field S.  No. 30/2 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. 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 land from acquisition under section 48(1)  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 17(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  called  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 in respect of a particular property there

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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 Juggobundhu Mukherjee and others v. Ram Chander Bysack(1) Garth,  C.  J.  delivering the judgment of  the  Full  Bench consisting of five Judges pointed out at page 588               "In the one case, the delivery of the land  is               to be made by placing the plaintiff in  direct               possession.   In  the other, the  delivery  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 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)  I.L.R. 5 Calcutta 584.                             260               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."

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Another  Full Bench consisting again of live learned  Judges of the Calcutta High Court presided over by Petheram,  C.J., in  the case of Joggobnudhu Mitter v. Purnanund Gossami  and another  (1)  reaffirmed  teh  view  taken  in   Juggobundhu Mukherjee’s  case (I.L.R. 5, Calsutta,584)in  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 facts of the case of Sri Radha Krishna Chanderji V. Rain Bahadur  and others(2), are these : The dispute  related  to 150  bighas  of land.  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  1898."(vide  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 (I.L.R. 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)  I.T.R. 16 Calcutta 530. (2)  A.T.R. 1917 Privy Council 197 (2).                             261               following  a  decision of the  Full  Bench  in               Juggobundhu  Mukherjee v. Ram Chandra  Bysack-               (1880)  5  Calcutta, 584=5 C.L.R.  548  (F.B.)               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 [A.I.R.  1917 Privy  Council, 197(2)] has been referred with  approval  by this  Court  in the case of M. V. S. Manikayala  Rao  v.  M. Narasimhaswami  and others(1) in paragraph 7 at page 474  in the  judgment  of  Sarkar, J, as he then  was,  as  also  in

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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, 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 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)  A.I.R. 1966 S.C. 470. (2)  A.I.R. 1932 Patna 145. 262 The same learnedJudge  had the occasion to consider  the question again in the case ofMahabir  Singh and  others  v. Emperor(1).  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

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             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, C.J.  and Rajagopala Aiyangar, J. has stated at page 762  in the case of Pathaperumal Ambalam v. Chidambaram  Chettiar(2) : .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." (1)A.I.R. 1934 Patna 565. (2)  A.T.R. 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.  What is required under the  Act is the taking of actual possession on the spot.  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 9(1) 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

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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 17(1)  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 9(1) 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.   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 of that field and the land  was  not actually  taken possession of by the Principal  Agricultural College,  Akola",  occurring in the letter  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  taking  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 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 48(1) of the Act. In the result the appeals fail and are dismissed with costs. One set of hearing fee. V.P.S.                              Appeals dismissed. 265

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