1994 Supreme(Bom) 411

IN THE HIGH COURT OF BOMBAY
Dr. B.P. Saraf M.L. Dudhat, JJ.
Sitaram Shivchandrai Garodia and another.... Petitioners.
Versus
State of Maharashtra and others.... Respondents.
Writ Petition No. 2705 of 1986, decided on 11-8-1994.
Advocates appeared :
R.A. Dada with N.G. Thakkar, Minoo Siodia, C.A. Jani instructed by Gagrat Co., for the petitioners.
Miss S.M. Dandekar, for respondents No. 1 2.
A.J. Rana with R.V. Desai, R.C. Master and Miss S.I. Shah, for respondents No. 3 and 4.
D.H. Mehta with M.B. Rao, for the respondent No. 5.

Headnote:Sections 4 & 16-Symbolic and actual possessions-Distinction between -Whether in the circumstance of the case possession was symbolic?

       Held -In this case it is an admitted position that the land is fenced and there is some construction where some chowkidar is staying: When the LAO visited the land for taking possession and when the present petitioners were not present on the spot and to the knowledge of the LAO the petitioners were in the High Court for getting order against the proposed handing, over of the possession, respondent No. 2 ought to have given some description as to how he along with representative of respondent No. 3 visited the land. It is not the case that the land is an open land. The land is a fenced land and there would be a gate. If it were actual possession respondent No. 2 would have closed the gate, put a lock and would have handed over the key to respondent No. 3. It is a fact that some chowkidar was staying there. How can actual possession be taken without asking the chowkidar to go out of the premises where he was staying. The detail of the land is not mentioned. Therefore, it will be very difficult to rely on the said statement in the affidavit that "the possession of the said assumed to have been taken over by the Land Acquisition Officer (3)". This only means that possession was taken symbolically and not actually. If he has not taken the actual possession there is no question of handing over actual possession to respondent No. 3 because even respondent No. 4 relied on affidavit of Chhotey Lal Gupta, Deputy Chief Engineer (Construction) Central Railway wherein he has stated that "the possession of the said land was assumed to be handed over to the Central Railway on 17. 10.1986". It is pertinent to note that after the alleged act of possession till 28.4.1994 no person on behalf of the railways visited the land and/or have done anything. On the contrary there is evidence to show that in fact present petitioners continued in possession of the land under acquisition.

       It is also pertinent to not that it is not the case of the respondents that though the possession of the land was taken by respondent No. 2 from the petitioners and banded over to respondent No. 3 on 17-10-1986 subsequently thereafter petitioners entered upon the land started cultivating the land. In view of this the contention of the present petitioners that at no point of time not even on 17-10-1986 the petitioners lost possession of the land appears to be the correct position. Therefore court is held that on 17th October, 1986 respondent No. 2 obtained symbolical possession of the land under acquisition and not the actual possession of the land therefore the land till today remains in possession continuously with the petitioners and never vested in the respondent as per section 16 of the Land Acquisition Act.

       In this matter the court has already come to the conclusion that the petitioners were in possession and even after obtaining symbolical possession on 17-10-1986 continued to be in possession even today. Therefore, court set aside the acquisition proceedings. Respondent No. 2 is also directed to hand over symbolical possession which he has received from respondent No. 3 to the present petitioners. Acquisition notice under Section 6 dated 15th June, 1981 (Exhibit E to the petition) as also the award dated 23rd September, 1986 passed by respondent No. 2 is set aside.