B.S. Chauhan and Arun Tandon, JJ.

1. An application for recall of the Judgment and order 27-11-07 has been filed by the applicant, Secretary, Krishi Utpadan Mandi Samiti, Hapur on various grounds and particularly that the applicant was a necessary party though not Impleaded in the said writ petition. The Court could not have been directed the State Government to consider the application of the petitioner under Section 48 of Land Acquisition Act, 1894 (hereafter referred to as Act 1894) in view of the fact that possession of the land has already been taken. Symbolic possession is sufficient and there is no requirement of actual and physical possession of the land be transferred. The application has been heard today. This Court vide Judgment and order dated 27-11-07 has asked the State Government to consider the application of the petitioner filed under Section 48 of the Act, 1894 in the light of the judgements of Supreme Court particularly in Union of India and Anr. v. Bal Ram Singh and Anr. 1992 Suppl. (2) SCC 136 [LQ/SC/1991/535] ; State of Tamilnadu and Anr. v. Mahalakshmi Ammal and Ors. : (1996)7SCC269 ; and Sube Singh and Ors. v. State of Haryana and Ors. 2001 (6) SC 578 [LQ/SC/2001/1781 ;] ">2001 (6) SC 578 [LQ/SC/2001/1781 ;] [LQ/SC/2001/1781 ;] wherein it has been held that an application for exemption from acquisition can be entertained and land may be exempted from acquisition provided the State Government is satisfied that exemption shall not disturb the planed development and the land if exempted would be adjusted in conformity with the planed development for which the scheme has been prepared.

2. The order under recall referred to the earlier Judgment in Writ Petition No. 38972 of 2007 Amar Singh and Anr. v. State of U.P. and Ors. wherein it had been clarified that such an application shall be entertained by the State Government provided the possession has not already been taken.

3. This application has been filed by the applicant on the ground that the possession has been handed over to the applicant by the nominee of the Collector at least on paper and it is not a requirement of law that actual physical possession should be taken for excluding the proceedings under Section 48 of the Act, 1894.

4. A very heavy reliance has been placed by Sri B.D. Mandhayan, learned Senior Counsel for the applicant on the Judgment in Balmokand Khatri Educational & Industrial Trust, Amritsar v. State of Punjab and Ors. : [1996]2SCR643 wherein the Apex Court held as under:

It is seen that the entire gamut of the acquisition proceedings stood completed by 17-4-1976 by which date possession of the land had been taken. No doubt, Shri Parekh has contended that the appellant still retained their possession. It is now well settled legal position that it is difficult to take physical possession of the land under compulsory acquisition. The normal mode of taking possession is drafting the panchnama in the presence of panchas and taking possession and giving delivery to the beneficiaries is the accepted mode of taking possession of the land. Subsequent thereto, the retention of possession would tantamount only to illegal or unlawful possession.

5. In State of T.N. and Anr. v. Mahalakshmi Ammal and Ors. : (1996)7SCC269 , without taking note of the earlier judgment in Balwant Narayan Bhagde (supra) held as under:

Possession of the acquired land would be taken only by way of a memorandum, Panchnama, which is a legally accepted norm. It would not be possible to take any physical possession. Therefore, subsequent continuation, if any, had by the erstwhile owner is only illegal or unlawful possession which does not bind the government nor vested under Section 16 divested in the illegal occupant.

6. In view of the above, it has been canvassed by Sri B.D. Mandhayan, learned Senior Counsel that it is not necessary that the persons interested i.e. tenure holders or occupant thereof should be dispossessed actually and the law does not require actual physical possession by the Collector.

7. The application has vehemently been opposed by Sri Shashi Nandan, Teamed Senior Counsel duly assisted by Sri Rahul Kumar Tripathi, Advocate for petitioner contending that this Court has not decided the case on merit rather passed a conditional order that in case the petitioners had not actually been dispossessed, their application under Section 48 of the Act, 1894 be considered in accordance with law. He submitted that documents filed along with recall application do not establish that possession has been taken.

8. We have considered the rival submissions made by the parties and have gone through the records of the case.

9. There cannot be a dispute in law that upon possession being taken under Section 16 or 17 of the, the land vests in the State free from all encumbrances. In this connection reference may be made to the following decisions of the Supreme Court in Satendra Prasad Jain and Ors. v. State of U.P. and Ors. : AIR1993SC2517 and N.N. Chandrasdhuya v. State of W.B. : AIR2002SC2532 .

10. So far as the application of Section 48 of theis concerned, in State of Madhya Pradesh v. V.P. Sharma : [1966]3SCR557 , the Honble Supreme Court has held as under:

The argument is that Section 48 is the only provision in the which deals with withdrawal from acquisition and that is the only way in which Government can withdraw from the acquisition and unless action is taken under Section 48(1), the Notification under Section 4(1) would remain, presumably for ever.... We are not impressed by this argument. In the first place, under Section 21 of the General Clauses Act (Act No. 10 of 1897), the power to issue a notification includes the power to rescind it. Therefore, it is always open to the Government to rescind a notification under Section 4 or 6 and withdrawal under Section 48(1) is not the only way in which a notification under Section 4 or 6 can be brought to an end.... The argument that Section 48(1) is the only method in which the Government can withdraw from the acquisition, has, therefore, no force because the Government can always cancel the notifications under Sections 4 and 6 by virtue of its power under Section 21 of the General Clauses Act....

11. Similar view has been reiterated in Special Land Acquisition Officer, Bombay and Ors. v. Godrej & Boyce : [1988]1SCR590 , wherein the Honble Supreme Court held that the Government is competent to withdraw from the acquisition proceedings and while doing so, the Government is neither required to afford opportunity of hearing to the land owners and nor it is required to record any reasons for such a withdrawal. At the most, land owners may be held entitled to claim compensation under Sub-section (2) of Section 48 in such an eventuality. The withdrawal of acquisition proceedings is permissible only prior to the vesting of the land in the State free from all encumbrances.

12. In case possession of the land has been taken application for release of land from acquisition is not maintainable as held by the Honble Supreme Court V.P. Sharma (supra); LT. Governor of H.P. and Anr. v. Sri Avinash Sharma : [1971]1SCR413 ; Pratap and Anr. v. State of Rajasthan and Ors. : [1996]2SCR1088 ; Mandir Shree Sitaramji alias Shree Sitaram Bhandar v. Land Acquisition Collector and Ors. ; and Bangalore Development Authority and Ors. v. R. Hanumaiah and Ors. : AIR2005SC3631 .

13. In Laxmi Chand and Ors. v. Gram Panchayat Kararia and Ors. : AIR1996SC523 the Apex Court held that notification under Section 48 of theis to be published in the Official Gazette for exempting the land, otherwise any order passed under the said provision would remain ineffective and inexecutable.

14. In Satendra Prasad Jain (supra) the Honble Supreme Court held that once land vests in the State free from all encumbrances, it cannot be divested and proceedings under the would not lapse even if award is not made within the statutory period. The same view has been reiterated in Avadh Behari Yadav v. State of Bihar and Ors. : (1995)6SCC31 ; U.P. Jal Nigam v. Kalra Properties (P) Ltd. : [1996]1SCR683 ; Allahabad Development Authority v. Nasiruzzaman and Ors. : (1996)6SCC424 ; Executive Engineer, Jal Nigam Central Stores Division, U.P. v. Suresha Nand Juyal and Ors. : [1997]2SCR1128 ; Mohan Singh and Ors. v. International Airport Authority of India and Ors. : (1997)9SCC132 ; M. Ramalinga Thevar v. State of Tamil Nadu and Ors. : (2000)4SCC322 ; and Government of Andhra Pradesh v. Syed Akbar and Ors. AIR 2004 SCW 7125.

15. The question does arise as what is the meaning of taking possession - whether it is taking of actual physical possession or symbolic/paper possession would be sufficient to meet the requirement of law. The issue was considered by a Division Bench of Patna High Court in Jetmull Bhojraj v. The State of Bihar and Ors. : AIR1967Pat287 , wherein it has been held that taking of possession referred to in Sections 16, 17(1), 34 and 48(1) of the must be of the same nature. It means actual and physical possession. Possession for this purpose must be the possession as a full owner, in consequence of which the land vests absolutely in the Government free from all encumbrances. It cannot be of same nature as any previous possession which the Government might have taken either as a lessee or mortgagee or licensee or under some other colour of title, or even as a trespasser. The Court held as under:

Though the is silent as to the mode of taking possession either under Section 16 or 17 of the, nonetheless either actual occupation by the Collector or his agents or taking the symbolic possession (where actual possession is already with the Collector) or doing something equivalent to effective possession is contemplated.

16. A three Judges Bench of the Honble Supreme Court considered the same issue in Balwant Narayan Bhagde v. M.D. Bhagwat and Ors. : AIR1975SC1767 and came to the same conclusion, wherein one of the Honble Judges, i.e. Honble Mr. Justice N.L Untwalia (as His Lordship then was) held as under:

19. In order to appreciate what is meant by taking possession of the land under Section 16 or 17(1) of the 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 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 hand 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" 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 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-debtors 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-debtors 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.

(Emphasis added).

13. The other two Honble Judges, namely, Honble Mr. Justice P.N. Bhagwati and A.C. Gupta (as their Lordships then were) on the same issue, observed as under:

On the taking of possession of the land under Sections 16 or 17(1) it vests absolutely in the Government free from all encumbrances. It is, therefore, clear that taking of possession within the meaning of Sections 16 or 17(1) means taking of possession on the spot. It is neither a possession on paper nor a "symbolical" possession as generally understood in Civil Law. But the question is what is the mode of taking possession The Act is silent on the point. Unless possession is taken by the written agreement of the 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 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 theis 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.

(Emphasis added).

18. It is evident that in order to dispossess the persons interested some positive action has to be taken by the Collector or his nominee on the spot after giving notice to the said persons interested. It is also evident from the Judgment relied by Sri B.D. Mandhayan, learned Senior Counsel according to which panchnama is a condition precedent for establishing that possession has been taken.

19. In the present application what has been filed by the applicant is the certificate executed between Amin and Mandi Samiti. Such a document cannot be termed as a panchnama or an act done on the spot. Therefore, such a document cannot be the relevant document for the purpose of establishing that possession has been taken from the person interested.

20. Even if the possession has been taken by the Collector, such document must be available with the State Government which shall be taken into consideration by the State Government while passing orders on the application under Section 48 of the Act, 1894. There is a presumption that the State Authority will decide the application after making reference to the actual facts applicable in the case. Therefore, there is no occasion for us to entertain the recall application filed by the applicant.

21. In view of the above, we do not find any force in the application. The application lacks merit and is accordingly rejected.