# BALWANT NARAYAN BHAGDE v. M. D. BHAGWAT & ORS

- **Citation:** [1975] Supp. 1 S.C.R. 250
- **Court:** Supreme Court of India
- **Decided:** 1975-04-23
- **Bench:** P. N. Bhagwati, A. C. Gupta, N. L. Untwalia
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/balwant-narayan-bhagde-v-m-d-bhagwat-ors-6515
- **Pages:** 15

## Headnote

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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
posse~ion 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
~·-
i
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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, wit

## Text

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r
250
A
BALWANT NARAYAN BHAGDE
v.
M. D. BHAGWAT & ORS.
April 23, 1975
B
[P. N. BHAGWATI, A. C. GUPTA AND N. L. UNTWALIA, JJ.]
c
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E
F
G
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
posse~ion 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
~·-
i
-
..
' 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 knowing- about
it.
[252E-H, 253A·Bl
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 is- not 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
pos~ess1on of th~ land. It may_ be 1n t~e 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]
251
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( ~) 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 statement- that the land was
not act_ually taken possession and t~e 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]
252
SUPREME COURT REPORTS
[1975) SUPP. S.C.R.
A
CIVIL APPELLATE JuR'SDICTION : Civil Appeal No. 75 & 76 -of
B
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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
f
\ '
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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 deterA
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.
C
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 it- was 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 til~d by the
Punjabrao Krisbi Vidyapeeth-(hereinafter called
the Agncultural Collge )-to quash the order of the Commissioner ,
254
SUPREME COURT REPORTS
[1975] SUPP. s.c.R.
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
me~suring 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 separa~e 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.
\
)
'
B. N. BHAGDE v. M. D. BHAGWAT (Untwalia, J.)
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.
255
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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
1
256
SUPREME COURT REPORTS
[1975] SUPP. S.C.R.
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 thereF
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.
H
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 resp~ct 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 nece-
I!. N. BHAGDE v. M. D. BHAGWAT (Untwalia, J.)
257
ssary 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 poss~ssion 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
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
Colle~e, 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 A~ri
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
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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
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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
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Coll~ge 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.
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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?
,+
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B. N. BHAGDE v. M. D. BHAGWAT ( Untwalia, J.)
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 in·respect 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 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 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
wh~ch. 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.
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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 :
D
"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."
H
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 thus- at 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 that- only actual
disoossession
wouM interrupt their adverse possession. The High Court
(') I.LR. 16 Cakntta 530.
(') A.LR. 1917 Privy Council 197 (2).
B. N. BHAGDE v. M. D. BHAGWAT ( Untwalia, J.)
261
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
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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.
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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.