JUDGMENT - M.L. DUDHAT, J.:---The petitioners have filed this writ petition for setting aside the acquisition of the land forming part of Survey No. 249 of village Ghatkopar, Taluka Kurla, Bombay Suburban District (hereinafter referred to as "the said land"). The petitioners on 5-12-1966 submitted a proposed lay out of a plot of land bearing Survey No. 249, Hissa No. 1 (part) admeasuring about 30,000 sq.yds. to the Municipal Corporation of Greater Bombay, respondent No. 5 herein. On 17-3-1967 respondent No. 5 approved the proposed lay out as per the conditions stated in the letter dated 17-3-1967. However, the petitioners received a communication from respondent No. 5 (Municipal Corporation) on 31-5-1967 stating in it that the land in respect of which proposed lay out was approved is affected by the arterial siding proposed by the Central Railway. The petitioners thereafter on 16th June, 1967 addressed letter to respondent No. 5 (Municipal Corporation) to the effect that the sanction of the proposals for the lay out of the building cannot be withheld on account of railway siding as there were no legal proceedings to that effect. In spite of the aforesaid letter and other letters addressed by the present petitioners on 10th April, 1968 respondent No. 5 Municipal Corporation refused approval of building plans and IOD inter alia on the ground that the plot is affected by the proposed arterial railway siding. 2. Therefore, on 3rd December, 1969 the petitioners filed Writ Petition No. 178 of 1969 against respondent No. 5 for permission to construct as per the lay out plan and the said writ petition was admitted by the High Court. While the said writ petition was pending on 22nd June, 1978 notice under section 4 of the Land Acquisition Act dated 20th June, 1978 was published in the Gazette. On 4th July, 1978 Writ Petition No. 178 of 1969 which was filed against respondent No. 5 Municipal Corporation for permission to construct was withdrawn by the present petitioners on the ground that the land was required by the Government for public utility. However, liberty was given to the present petitioners to take such steps as advised in the event the acquisition is abandoned. Notice under section 6 of the Land Acquisition Act was published on 15th June, 1981 and the Land Acquisition Officer started acquisition proceedings. However, liberty was given to the present petitioners to take such steps as advised in the event the acquisition is abandoned. Notice under section 6 of the Land Acquisition Act was published on 15th June, 1981 and the Land Acquisition Officer started acquisition proceedings. On 23rd September, 1986 LAO issued notice under section 12(2) of the Land Acquisition Act stating in it that he has declared award under section 11 of the Land Acquisition Act and the award was declared on 23rd September, 1986. 3. Thereafter on 23rd September, 1986 LAO gave notice to the petitioners that they should remain present on the said land acquired at 10.30 A.M. on 17-10-1986. After the receipt of the aforesaid notice petitioners decided to file writ petition and therefore on 15-10-1986 petitioners gave notice to respondents more particularly respondents Nos. 1 to 4 stating in it that they have filed Writ Petition No. 2754 of 1986 and the said writ petition was fixed for admission on 17th October, 1986 and therefore requesting LAO respondent No. 2 not to take any steps in acquisition matter and to maintain status quo. On 17th October, 1986 when the matter came up for admission rule was issued by this High Court. However, no interim relief was granted in favour of the petitioners in the said writ petition as counsel for the Government made the statement before the Court at the time of admission that the possession of the land was already taken from the petitioners by respondent No. 2. It is the case of the petitioners that though the statement was made by counsel for the Government to the effect that the possession of the land was taken no proof was given on behalf of the Government to the effect that the said possession was in fact taken. However, fact remains that in view of the aforesaid statement made on behalf of the Government no interim relief was granted in favour of the present petitioners. 4. Thereafter on 26-11-1986 petitioners took out Notice of Motion No. 2754 of 1986. However, fact remains that in view of the aforesaid statement made on behalf of the Government no interim relief was granted in favour of the present petitioners. 4. Thereafter on 26-11-1986 petitioners took out Notice of Motion No. 2754 of 1986. In the affidavit filed to support the aforesaid Motion it is stated by the petitioners that after the admission of Writ Petition on 17th October, 1986 petitioners made enquiries in the office of respondent No. 2 and were told that notional possession was taken of the land by the 2nd respondent and notional possession was given simultaneously to the Central Railway Dadar and all the transactions of taking the possession and handing over the possession was effected at 10.30 A.M. on 17th October, 1986 in spite of the notice of the advocate of the petitioners dated 15th October, 1986 informing respondent No. 2 that the petition has been filed by the petitioners for taking further steps in acquisition proceedings and, therefore, requesting LAO to maintain the status quo. In the said Notice of Motion petitioners prayed for interim relief and the Court granted interim relief to the effect that pending the hearing and final disposal of Writ Petition No. 2754 of 1986, respondents, their servants, subordinates, officers and agents be restrained by the order and injunction of Honble Court from taking any further steps or proceedings in respect of the said land and/or from developing, excavating or in any manner whatsoever otherwise dealing with the said land. The Court also granted permission to amend the petition. 5. On 26-11-1993 petitioners also took out Notice of Motion being Notice of Motion No. 746 of 1993 for amendment of the writ petition for claiming quashing of the award. On 3rd December, 1993 the said prayer was allowed and liberty was given to the other side to file the affidavit. On 31st January, 1994 Deputy Chief Engineer, Central Railway, filed affidavit on behalf of respondent No. 3 Union of India. In the said affidavit it is stated that the possession of the said land was assumed to have been handed over to the Central Railway on 17-10-1986 through Special Land Acquisition Officer (3) Bombay representing Government of Maharashtra. However, subsequently railway board decided to drop the proposal of having new line and, therefore, land is not required by the Central Railway. However, subsequently railway board decided to drop the proposal of having new line and, therefore, land is not required by the Central Railway. Second respondent LAO also filed affidavit dated 10-12-1993 wherein it is stated that on 17-10-1986 possession of the land was assumed to have been taken over and possession was handed over to the Central Railway. On 6-1-1994 Municipal Corporation respondent No. 5 also filed affidavit that if the acquisition is dropped then the case of the petitioners for the development of the land will be considered as per the rules, regulations, policy and procedure of the respondents in such cases. On behalf of the State Government affidavit was filed by Shri A.D. Karkhanis, Under Secretary, Revenue and Forests Department. After hearing all the parties Division Bench of this Court in Notice of Motion No. 746 of 1993 directed respondent No. 3 to return the possession of the land to respondent No. 2. In April 1994 affidavit was also filed by Dy. Salt Commissioner claiming ownership of the land. As per the order of the Division Bench Central Railway handed over possession of the land to the Special Land Acquisition Officer on 28-4-1994. 6. When the aforesaid proceedings were pending in the meantime on 13-12-1988 notice was issued by the State of Maharashtra under Maharashtra Land Revenue Code to the petitioners and Deputy Salt Commissioner (as he was also claiming ownership of the land). For challenging the said action and for challenging the claim of the salt department petitioners filed Writ Petition No. 52 of 1989 on 4th January, 1989. After hearing both sides the said writ petition was allowed and the rule was made absolute in favour of the present petitioners. In view of these facts there is no question of considering the claim of the salt department for the land in the present writ petition and this legal position is also fairly conceded by Mr. Rane, learned Counsel appearing on behalf of respondent No. 3. 7. Relying on these aforesaid facts it is contended by Mr. Dada, learned Counsel appearing on behalf of the present petitioners that on 17-10-1986 respondent No. 2 LAO had not taken the actual possession as envisaged by Land Acquisition Act but in fact taken a symbolical possession and, therefore, the land never vested in the Government absolutely as per section 16 of the Land Acquisition Act. Mr. Dada, learned Counsel appearing on behalf of the present petitioners that on 17-10-1986 respondent No. 2 LAO had not taken the actual possession as envisaged by Land Acquisition Act but in fact taken a symbolical possession and, therefore, the land never vested in the Government absolutely as per section 16 of the Land Acquisition Act. Mr. Dada, learned Counsel appearing on behalf of the present petitioners also relied on the evidence to show that in fact the petitioners continued to be in possession of the land and the said land was never parted. In view of this it was contended on behalf of the present petitioners that land never vested in the Government and, therefore, since the railway abandoned their project and no more required this land the land should go back to the present petitioners. It was also contended on behalf of the present petitioners that in fact possession given by respondent No. 2 i.e. LAO to the railways was only symbolical possession which was given simultaneously at the time of taking of the symbolical possession from the present petitioners. From the aforesaid facts the only disputed question before us is as to whether on 17-10-1986 respondent No. 2 took the actual possession of the land or took the symbolical possession of the land. At this stage we may point out that the Supreme Court in (B.N. Bhagde v. M.D. Bhagwat)1, A.I.R. 1975 S.C. 1767 has observed 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. 8. Mr. Rana, learned Counsel appearing on behalf of the respondent, also accepted this legal proposition that in order to see that the land vested in the Government absolutely under section 16 of the Land Acquisition Act the Land Acquisition Officer must take actual possession of the land and not symbolical possession. However, it is contended on behalf of the respondents by learned Counsel Mr. However, it is contended on behalf of the respondents by learned Counsel Mr. Rana that in fact Land Acquisition Officer on 17-10-1986 took the actual possession of the land from the petitioners and handed over the actual possession of the land to the railways and, therefore, according to respondents land in fact vests in the third respondent and then third respondent is entitled to use the aforesaid land for any other public purpose viz., in this case the Government wants to use it for the purpose of Ministry of Irrigation Development. In view of this controversy we will have to scan the evidence in the light of affidavits filed by both sides and come to the conclusion as to whether on 17-10-1986 respondent No. 2 took the actual possession of the said land and handed over the actual possession of the same to respondent No. 3 or took the symbolical possession of the said land and handed over symbolical possession to respondent No. 3. 9. In order to support his contention learned Counsel Mr. Dada appearing on behalf of the petitioners relied upon several facts, circumstances and pieces of evidence to show that in fact only symbolical possession was taken by respondent No. 2 and respondent No. 2 handed over the said symbolical possession to respondent No. 3 and the land still continues to be in possession of the present petitioners. According to the petitioners they received the notice dated 23rd September, 1986 from respondent No. 2 to the effect that the petitioners should remain present on the land to hand over the possession of the land which is the subject matter of acquisition to respondent No. 3 on 17th October, 1986 at 10.30 A.M. The aforesaid action was challenged by the present petitioners by filing the present writ petition and the notice of it was given to the respondent on 15-10-1986. In the said notice it was specifically stated that against the said acquisition the petitioner have filed the writ petition and petitioners are going to move the High Court on 17th October, 1986 for admission and interim relief. In the said letter the petitioners also stated that in view of this respondent should maintain the status quo and not to take any steps in furtherance of acquisition. In the said letter the petitioners also stated that in view of this respondent should maintain the status quo and not to take any steps in furtherance of acquisition. In view of this notice according to petitioners it is difficult to believe that respondent No. 2 obtained ex parte actual possession and handed over the same to respondent No. 3. According to the petitioners in fact when the matter was moved before this High Court for admission and when the matter was admitted at the time of interim relief statement was made by respondent Counsel that the possession of the land was already taken by respondent No. 2 and handed over the same to respondent No. 3. At the relevant time the petitioners had no occasion whatsoever to verify the truthfulness of the said statement as obviously the fact remains on 17-10-1986 the petitioners were in the High Court while the possession was to be handed over of the said land. However, it appears that thereafter the petitioners made enquiries in the office of the 2nd respondent. At the time of making enquiries in the office of the 2nd respondent it is the case of the petitioners that they were told in the office of the 2nd respondent that notional possession of the land was taken by respondent No. 2 and notional possession of the land was given simultaneously to the Central Railway, Dadar. All this is supposed to have taken place at 10.30 A.M. on 17th October, 1986. The petitioners further contended that in their affidavit in reply the respondents nowhere relied on any document to show as to how they have taken the possession nor stated in detail as to how actual possession was taken and in what manner it was taken more particularly in view of the fact that petitioners were not present on the land. It is further contended on behalf of the present petitioners that the Inspector of Salt, Trombay, on 16-8-1987 and 21-8-1987 visited the site when he found that land under acquisition had been fenced by barbed wire and signboards stating "As per High Court Order, status-quo should be maintained on this land, Trespassers will be prosecuted." The aforesaid visit is referred to in the letter dated 22-8-1987 relied by the respondents in the affidavit of Shri Mohamed Anas Ansari dated 7th July, 1994. In the said letter the Inspector of Salt, Trombay, has also referred to certain construction on the land under acquisition. It is contended on behalf of the present petitioners that the aforesaid document comes from the custody of the respondent. Inspector of Salt visited the land within one year of the alleged possession on 17-10-1986 and even at that time the said land was fenced and there was some construction where chowkidar was staying. It is not the case of the respondent that after getting the actual possession of the land they have fenced and have done construction thereon. According to our opinion this lends support to the contention of the present petitioners that in fact at no point of time they lost the actual possession of the land. 10. It is further argued on behalf of the present petitioners that on 13-10-1988 notice under section 20(2) of the Maharashtra Land Revenue Code was received from S.D.O., B.S.D. by the present petitioners and also by the Deputy Salt Commissioner stating in it that the ownership of the said land is claimed by the Government. Relying on the aforesaid circumstances it is contended on behalf of the present petitioners that if the possession of the said land was actually taken on 17-10-1986 where was the question of deciding the ownership of the land through Salt Department. However, against the said order of SDO the present petitioners filed Writ Petition No. 52 of 1989. In the affidavit filed by SDO, B.S.D. in the said writ petition in para 6 it is stated that "the petitioners name is wrongly shown in kabjedar column in respect of said land. In fact the petitioner is not original lessee but a subsequent purchaser of the salt works and not of the disputed lands. The petitioners continue to occupy the said land after the expiry of the lease period. The original lessee never approached the Collector to transfer the lease or to extend the lease period." Referring to the aforesaid enquiry and the said affidavit it was contended by Mr. Rana, learned Counsel appearing on behalf of the respondents, that in fact this is an extraneous material from the point of view of the dispute in the present writ petition. According to Mr. Rana, learned Counsel appearing on behalf of the respondents, that in fact this is an extraneous material from the point of view of the dispute in the present writ petition. According to Mr. Rana the land in question is claimed by the Salt Department independently and since the Inspector of Salt found that name of the petitioner is mentioned wrongly in kabjedar column enquiry under section 20(2) of the Maharashtra Land Revenue Code has started. According to our opinion this evidence definitely lends support to the contention of the present petitioners to the effect that they were in actual possession and continued to be in actual possession even on 17-10-1986 and thereafter. 11. The petitioners further relied strongly on the affidavit filed by Vasantlal N. Shah, SLAO, who in his affidavit stated that SLO the then who actually visited the land on 17th October, 1986 for obtaining the possession from the present writ petitioners and handing over the same to respondent No. 3. In his affidavit he has stated "I say that on 17th October, 1986 the possession of the said land was assumed to have been taken over by the Land Acquisition Officer (3) as none of the owners were present on site to hand over the possession of the same. I therefore deny that the possession of the said plot was neither taken over by me nor handed over to the respondents as alleged by the petitioner. I say that thereafter on the same day simultaneously the possession was handed over to the Central Railway, Kurla for whom the said land was acquired". From a bare reading of this affidavit of the person who is supposed to have taken the possession it appears that he has in fact obtained the symbolical possession and handed over symbolical possession to respondent No. 3. 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 land was 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. 3 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. 12. Mr. Rana appearing on behalf of the present respondents relied upon the fact that since the land pertained to the Government cess is not to be paid. According to our opinion in view of the acquisition proceedings the cess might not have been started by the revenue authorities but that is not going to support the argument that they in fact received actual possession from respondent No. 3 on 17-10-1986. Excepting the affidavits of Vasantlal N. Shah, SLAO and Chhotey Lal Gupta, Deputy Chief Engineer (Construction), Central Railway, respondent have not relied on any evidence. However, for the first time Mr. Rana relied on the receipt of possession by referring this in the Court to show that in fact actual possession was given. Excepting the affidavits of Vasantlal N. Shah, SLAO and Chhotey Lal Gupta, Deputy Chief Engineer (Construction), Central Railway, respondent have not relied on any evidence. However, for the first time Mr. Rana relied on the receipt of possession by referring this in the Court to show that in fact actual possession was given. In the receipt whereby actual possession is alleged to have been obtained from the petitioners to respondent No. 2 the date written at both the places was 14 which was subsequently changed into 17. Relying on the aforesaid deletion of the date 14 and overwriting 17 on the same it was contended on behalf of the present petitioners that in fact after the receipt of the notice of 15-10-1986 from the present petitioners to the respondents to the effect that they are going to move the High Court for an order by filing a writ on 17th October, 1986 to see that the writ petition becomes redundant respondents deliberately written the possession receipt dated 14 but subsequently realising that on 23rd September, 1986 they have already given the notice that possession will be taken on 17th they had to change the said from 14 to 17. On the other hand Mr. Rana, learned Counsel appearing on behalf of the respondents, contended that the aforesaid mistake might be bona fide firstly of a wrong date wrongly put by the scribe. We do not wish to go into the controversy of this matter. However, according to our opinion this receipt also does not improve the case of the respondents. In the said receipts also except referring to the fact that possession of the land was taken by respondent No. 2 from petitioners and handed over the same to respondent No. 3 there is nothing. Even the word actual possession is missing. As pointed out above there is no panchanama or any other description in the receipt about the land because there is no reference to the fencing as well as the structure on the land. In view of this both these receipts even if we decide to consider the same cannot support the case of the respondents that actual possession of the land was taken. In view of this both these receipts even if we decide to consider the same cannot support the case of the respondents that actual possession of the land was taken. The aforesaid 2 receipts relied upon by the respondents dated 17-10-1986 are not the receipts to show that the actual possession of the land was taken is also clear from the wordings of the receipt when the possession was handed over on 28th April, 1994 by the 3rd respondent to the 2nd respondent in pursuance of an order of this Court wherein it is stated that the Central Railway handed over the possession to SLAO "along with two occupied tin sheds and barbed wire fencing supporting on bellies along the western and southern boundaries of above land." If, according to our opinion, respondent No. 2 had taken the actual possession of the land under acquisition he would have described the land having fencing, with construction thereon but instead of that the receipt as well as the statement in the affidavit show that they have supposed to have taken the possession of the land on 17-10-1986. 13. It is also pertinent to note 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 handed over to respondent No. 3 on 17-10-1986 subsequently thereafter petitioners entered upon the land and 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, we are of this view that on 17th October, 1986 respondent No. 2 obtained symbolical possession of the land under acquisition and not the actual possession of the land and 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. 14. Mr. Rana appearing on behalf of the respondents further contended that on 25th March, 1994 in this writ petition in Notice of Motion No. 746 of 1994 the Division Bench of this Court passed an order directing respondent No. 3 to return back the possession to the State Government within four weeks. 14. Mr. Rana appearing on behalf of the respondents further contended that on 25th March, 1994 in this writ petition in Notice of Motion No. 746 of 1994 the Division Bench of this Court passed an order directing respondent No. 3 to return back the possession to the State Government within four weeks. In the said order it is further stated that it was open for the Railway Board to take the decision within this period. In default the SLAO shall take over possession without any order from railway. Relying on the aforesaid order it is contended on behalf of the respondents that as per this order the possession was with railways and as per this order the same was handed over to the Land Acquisition Officer. Mr. Rana further contended that the aforesaid order is also not challenged by the present petitioners and, therefore, as per this order the actual possession of the land was with railways and not with the present petitioners. We do not agree with the aforesaid submission as advanced on behalf of the respondents. The aforesaid order is made at an interim stage. This Court has only directed that the possession received on 17-10-1986 by respondent No. 3 from respondent No. 2 to be handed over to respondent No. 2. Possession means whatever respondent No. 3 received on 17-10-1986. It may be the actual possession or symbolical possession and therefore this order does not exclude or negate the possibility of symbolical possession being taken from petitioners to respondent No. 2 and from respondent No. 2 to respondent No. 3. In view of this there is no force in this argument. We have already pointed out earlier that how in view of the decision dated 12-11-1992 in Writ Petition No. 52 of 1989 Salt Commissioner cannot claim the possession of the said land. Therefore, admittedly the position as it stands today is that the land was acquired for the public purpose for railways. Though the award was passed the actual possession of the said land continued to remain with the owners of the land i.e. the present petitioners and only symbolical possession was taken from the present petitioners on 17-10-1986. Railways have clearly stated on affidavit that they do not require this land any more. Though the award was passed the actual possession of the said land continued to remain with the owners of the land i.e. the present petitioners and only symbolical possession was taken from the present petitioners on 17-10-1986. Railways have clearly stated on affidavit that they do not require this land any more. In view of the abandonment of the purpose for which the railways required the said land and in view of the fact that as per the order of this Court as mentioned earlier the possession of the said land is now handed over to L.A.O. on 28th April, 1994, the only question that remains is whether the petitioners are entitled to get back the said land. At this stage I may mention that compensation awarded is deposited with the Collector but the petitioners have not withdrawn the same or any part thereof. 15. In this matter we have 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, we 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. 16. It was contended on behalf of the present petitioners that respondent No. 5 approved the lay out as per the conditions stated in the letter dated 17-3-1967. In view of the fact the petitioners were not allowed to construct on the land in view of acquisition proceedings and now in view of the fact that acquisition proceedings are set aside, it was submitted that we should direct respondent No. 5 to allow the petitioners to develop the said land as per the rules and regulations as on 17-3-1967. Mr. Mehta, learned Counsel appearing on behalf of respondent No. 5 contended that respondent No. 5 will consider the application of the petitioners in respect of approval of lay out building plan as per rules and regulations, policy and procedure of respondents in such cases. In view of this we do not propose to deal with this aspect of the matter and to give direction in that regard to respondent No. 5. In view of this we do not propose to deal with this aspect of the matter and to give direction in that regard to respondent No. 5. In the result this writ petition is allowed in the above terms. There shall be no order as to costs. Certified copy expedited. Mr. Desai appearing on behalf of the respondents prays that the judgment and order passed by this Court may be stayed for a period of 12 weeks from today in order to enable the respondents to approach the Supreme Court. The petitioners strongly oppose the said application. After hearing both the sides we grant the prayer of the respondents and stay the operation of this judgment and order for a period of 12 weeks from today. Petition allowed. *****