- (1.) AN application for recall of the judgment and order dated 27. 11. 2007 has been filed by the applicant, Secretary, Krishi Utpadan Mandi Samiti, Hapur on various grounds and particularly that the applicant was a neces-sary 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. 2007 has asked the State Govern ment to consider the application of the petitioner filed under Section 48 of the Act, 1894 in the light of the judgments of Supreme Court particularly in Union of India and another v. Bal Ram Singh and another, 1992 Suppl. (2) SCC 136; State of Tamilnadu and another v. Mahalakshmi Ammal and others, (1996) 7 SCC 269; and Sube Singh and others v. State of Haryana and others, JT 2001 (6) SC 578 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 Gov ernment is satisfied that exemption shall not disturb the planed development and the land if exempted would be adjusted in conformity with the planed develop ment 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 another v. State of U. P. and others, wherein it had been clarified that such an application shall be entertained by the State Govern ment provided the possession has not already been taken. 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 Collec tor at least on paper and it is not a requirement of law that actual physical pos session should be taken for excluding the proceedings under Section 48 of the Act, 1894. A very heavy reliance has been placed by Sri B. D. Mandhyan, learned Senior Counsel for the applicant on the judgment in Balmokand Khatri Educa tional and Industrial Trust, Amritsar v. State of Punjab and others, (1996) 4 SCC 212 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 posses sion. "
(3.) IN State of T. N. and another v. Mahatakshmi Ammal and others, (1996) 7 SCC 269, 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 memo randum, Panchnama, which is a legally accepted norm. It would not be pos sible 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. " In view of the above, it has been canvassed by Sri B. D. Mandhyan, 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.;