judgement:
Appeal No. 75 & 76 of 1974.
Appeal by special leave from the Common Judgment and Order dated 27 /28 9 1973 of the Bombay High Court, Nagpur Bench, in Spl.
Civil Applications Nos.
826 of 1968 & 389 of 1971.
Sardar Bahadur Saharya and Vishnu Bahdur Saharya, for the appellants.
M.N. Phadke 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. Ratnaparkhi, for respondent No. 1 (In Appeal No. 76/74).
K.L. Rathi and M. N. Shroff, for respondents Nos.
(In 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.
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 XXI of the Code of Civil Procedure, is not necessary for the disposal of the present appeals and we do not wish to subscribe to what has been said by our learned brother Untwalia, J., 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 state 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.
Nor would possession merely on paper be enough.
How such possession may be taken would depend on the natureof the land.
Such possession would have to be taken as the natureof the land admits of.
There can be no hard and fast rule laying down what act 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 'pot and making a declaration by beat of drum or otherwise would be sufficient to constitute taking of possession of land in every case.
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 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 desirable 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.
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 waste or arable and handed it over to the Principal of the Agricultural College.
It is true that the Special Land Acquisition Officer in his letter dated 13th December, 1961 to the Commissioner stated that possession of the entire land was still with the appellant and it was not actually taken possession of by the Principal, Agricultural College.
But it is obvious that this statement was made by the Special Land Acquisition Officer because he thought that actual possession of the land could not be regarded as having been taken, unless the appellant was excluded from the land and since 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 appellant entered upon the land and resumed possession of it the very next moment after the land was actually taken possession of and became vested in the Government, such act on the part of the appellant 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 and arable land was taken by the Tehsildar on 3rd April, 1959 and it became vested in the Government.
Neither the Government nor the Commissioner could thereafter withdraw from the acquisition of any portion of this land under section 48(1) of the Act.
There will be only one set of costs.
These two Civil Appeals filed by Shri Balwant Narayan Bhagde on grant of special leave by this Court arise out, of a common judgment of the Bombay High Court allowing Special Civil Application No. 826/1968 filed by Shri M. D. Bhagwat and Shri E. R. Mahajani, respondent Nos. 1 and 2 in Civil Appeal No.75 of 1974 and Special Civil Application No. 389/1971 filed by thePunjabrao Krishi Vidyapeeth (hereinafter called the AgriculturalCollege) to quash the order of the Commissioner 254 Nagpur purporting to give sanction for withdrawal of the acquisition by his 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 has held that possession of the land in question was taken by the Collector, Akola and given to the Principal, Agricultural College.
It was, therefore, not open to the Commissioner to withdraw 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 hereinafter called the Act.
It is well settled and nothing to 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 17(1) of the Act, the land vests in the Government and the Government or any other authority is not at liberty to withdraw from the acquisition of any land of which possession has been taken; vide, State of Madhya Pradesh and Ors.
The controversy, therefore, centered round the question as to whether possession of the land which was released by the Commissioner under section 48(1) of the Act had been taken or not.
For the purpose of the Agricultural College a large area of land was acquired near Akola.
The total area of this plot is 20 acres 33 gunthas.
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 5A.
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 of the notice under section 9(1) on 24 3 1959 the land Acquisition Officer ordered the Tehsildar, Akola to deliver possession of the land to the Principal, Agricultural College or his nominee in the presence of the Sub Divisional Officer, P.W.D. Building and Roads Section, Akola and directed him to report compliance alongwith the possession receipt obtained from the Principal by 2 4 1959.
The Tehsildar took and handed over possession on 3 4 1959 and made a report.
An area of 19 acre 17 gunthas which contained a double storied house of the appellant and a well etc. was for the time being left and possession of the same was not taken.
It appears, just after the issuance 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 acres 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.
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 And gave possession of the same to the 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, Agricultural College.
In paragraph 3 of Special Civil Application No. 389/1971 it wasstated 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 arable to which the provision of section 17 of the Act could apply.
Actual possession of 19 acres 16 gunthas alongwith the other pieces of land measuring 200 acres and odd was delivered to the Principal, Agricultural College.
In the return filed on behalf of the Officers of the Government the contents of paragraph 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 that actual possession of the land in question was taken and handed over on 3 4 1959 on the spot ; and, even symbolical 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.
Mr. Sardar Bahadur Saharya, learned counsel for the appellant, submitted that possession of any portion of the land comprised in Survey No. 30/2 was not taken by the Government or given to the Principal, Agricultural 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 sym bolical delivery of possession, even if any bad not the effect of divesting the appellant from the Actual possession over the land.
Counsel further submitted that the order of withdrawal which is confined to 256 an area of 12 acres 23 gunthas only out of Survey No. 30/2 leaving a further balance of 6 acres 33 gunthas to the College was valid.
Mr. Hathi appearing for the Government and its authorities struck to their stand that only symbolical possession was taken and actual possession remained with the appellant.
Learned Attorney General for the Agricultural College, followed by Mr. Phadke for the owners, submitted that no where the appellant had challenged the taking of possession of the land on the spot on 3 4 1959.
The effect of taking possession of the land 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 taking possession on the spot and notice published under section 9(1) is sufficient.
It may be stated at the outset that there does not seem to be any dispute as respects the fact that Bhagwat and Mahajani were the owners of the land at the time of the issuance of the notification under section 4 of the Act and the appellant was in its occupation or actual possession as a tenant.
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.
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 there after.
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 lo 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 appellant 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.
It 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 be was its protected lessee and as such 'he was entitled to receive compensation that may be granted.
But be said that he was entitled to the said amount.
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 put any impediment in the taking of possession of the land comprised in Survey No. 30/2.
He merely wanted the stay of taking possession in respect of the house.
The total area mentioned in this letter is 234 acres 31 gunthas including 19 acres and 16 gunthas in Survey No. 30/2.
The Revenue Inspector endorsed "handed over as above." On the facts and in the circumstances of this case it is difficult to accept the argument put forward on behalf of the appellant that the taking and 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, the land Acquisition Officer got the information that possession had been taken and given but in spite of that in the letter dated 7 4 1959 a direction was given to the 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 College.
Akola and the possession receipt is enclosed.
In case possession of section No. 30/2 is still to be withheld, the Principal, 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 16 4 1959 written by the Assistant Secretary of the Government of Bombay to the appellant in reply to his letter addressed to the Minister for Agriculture a copy of which was forwarded to the Collector, Akola that for the first time in this letter he was requested to stay the proceedings until further orders.
Then comes the letter dated 4 5 1959 written by the Land Acquisition Officer to the Collector, Akola.
Reference was made to all these 258 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, Acquisition Officer dated the 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 College to the Director of Agriculture stating therein that possession of the whole field No. 30/2 excluding the 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.
Then comes an important letter again referred at the Bar on behalf of both the parties written by the Special Land Acquisition Officer, 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 IA 15G of land to be acquired under urgency clause was deferred as on joint 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 1 acre and odd only was left out of possession.
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 section No. 30/2 was passed on 3 4 1959, the possession (physical) of the entire field section No. 30/2 of Umari is still retained by the lessee of that field and the land was not actually taken possession of by the Principal, Agricultural College, Akola.
" Learned counsel for 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 land from acquisition under section 48(1) of the Act.
It is not necessary to refer to the further correspondence which 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 in the award prepared by the Collector on 30 1 1960 compensation for the said land was not determined.
And eventually in the year 1968 an area of 12 acres 23 gunthas was sought to be released from acquisition.
The question for consideration is was the release valid and proper ? 259 In order to appreciate what is meant by taking possession of the land under section 16 or 17(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 called the Code, and some decisions thereon.
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 band 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 '9 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 dispossess 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 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.
In the other, the delivery is effected by the officer of the Court by going through a certain process prescribed by section 224, and proclaiming to the occupants of the property that the plaintiff has recovered it from the defendant.
This is the only way in which the decree of the Court, awarding possession to the plaintiff, can be enforced ; and as, in contemplation of law, (1) I.L.R. 5 Calcutta 584.260
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 actual possession."
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 live learned Judges of the Calcutta High Court presided over by Petheram, C.J., in the case of Joggobnudhu Mitter vs Purnanund Gossami and another (1) reaffirmed teh view taken in Juggobundhu Mukherjee 's case (I.L.R. 5, Calsutta,584)in the following words : "The Full Bench held that symbolic.
possession obtained by the plaintiff 's vendor was effective as against the judgment debtor, defendant, and that the suit brought against him within 12 years of that event was not barred by limitation.
The plaintiffs had filed a suit to recover possession of the said land.
The principal defendant who was the appellant before the Privy Council was an 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 were the purchasers of the property.
"The land being in occupation by cultivating tenants 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 At the same page "This interruption, if such it was, of the defendants ' actual possession was not of long duration.
Hence the necessity for the present suit.
Hence also the defence of adverse possession for more than twelve years before suit began.
" It would thus be seen that formal possession of the land in actual occupation of the tenants, which in a sense was symbolical, was ' characterised as interruption of defendant 's actual possession.
And finally the ratio of the decision of the Full Bench of the Calcutta High Court in Juggobundhu Mukherjee 's case (I.L.R. 5, Calcutta, 584) was approved thus at page 201, column 1 : "In the High Court and before their Lordships it was further argued that symbolical possession would not avail against the defendants, but that only actual dispossession would interrupt their adverse possession.
The High Court (1) I.T.R. 16 Calcutta 530.(2) A.T.R. 1917 Privy Council 197 (2).261 following a decision of the Full Bench in Juggobundhu Mukherjee vs Ram Chandra Bysack (1880) 5 Calcutta, 584=5 C.L.R. 548 (F.B.) held that symbolical possession availed to dispossess 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 to question it or to hold that this rule of procedure should now be altered.
" In the case of joint possession the decision of the Privy Council in Sri Radha Krishna Chanderji 's case [A.I.R. 1917 Privy Council, 197(2)] has been referred with approval by this Court in the case of M. V. section Manikayala Rao vs M. Narasimhaswami and others(1) in paragraph 7 at page 474 in the judgment of Sarkar, J, as he then was, as also in paragraph 20 at page 478 is that of Ramaswami, J. I may just quote a sentence from paragraph 7 which says : "By the delivery of symbolical possession under the 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 vs 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 147.
In that case the question of 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 by a person who was in.
no better position than the mortgagor judgment debtor.
The learned Judge pointed out at pages 147 and 148 "When it is said that symbolical possession is not binding upon a third party but actual possession is, it is only meant that when a decree bolder 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 had if the Court simply proclaims that the decree holder or auction purchaser has been given possession but on account of the nature of the property they have not been placed in physical occupation of the property itself, such a delivery of possession can be binding only upon those who are parties to those proceedings or on those who claim through them.
The difference, as I have said, is due to the nature 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) ; (2) A.I.R. 1932 Patna 145.
262 The same learnedJudge had the occasion to consider the question again in the case ofMahabir Singh and others vs Emperor(1).
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 at page 568.
The writ of delivery was issued in the previous litigation under Order 21, Rule 95 of the Code and in that connection the different modes of delivery of possession over a piece of land were discussed.
The momentary possession given to the purchaser was characterised as delivery of symbolical possession by the Additional Sessions Judge and not actual possession.
The learned Judge pointed out at page 569, column 1: "It issued its writ under Rule 95, and the peon formally put the auction purchaser in possession of the property.
It is wrong to think that there Are two kinds of delivery of possession ; one actual and the other symbolical independent of the nature of possession of the judgment debtor.
Even if the delivery of possession was symbolical, its effect against the judgment debtor was the same.
" The so called paper possession or possession on paper is no delivery of possession, actual, formal or symbolical.
A Bench of the Madras High Court consisting of Rajamannar, C.J. and Rajagopala Aiyangar, J. has stated at page 762 in the case of Pathaperumal Ambalam vs Chidambaram Chettiar(2) : .lm15 "The next question is whether it makes any difference in legal effect if possession is taken through court.
The Code contemplates no notice to the judgment debtor at that stage or any objection being raised by him to the delivery of possession under Rule 95, or Rule 96, and as the full title to the property has passed from the judgment debtor to the auction purchaser, he has no interest in the property to protect.
" It has further been pointed out "The characterisation of possession taken under Order 21 Rule 96, as "paper possession" is hardly justified and runs counter.
to the principle on which the provision is based.
Symbolical possession obtained under Order 21, Rule 96 is quite a different thing from paper possession, which might correctly describe only the possession obtained by a party who being entitled to actual possession, the judgment debtor himself being in possession, obtains delivery of possession on paper without actual possession ; or those cases where without complying with the requisites of the statute a false return is made as if they were complied with." (1)A.I.R. 1934 Patna 565.
(2) A.T.R. 1954 Madras 760. 263 It would thus be seen that a symbolical or formal delivery ' of possession as understood in law has the effect of dispossessing the judgment debtor from his right title or interest in the property.
It does not 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.
A symbolical or formal delivery of possession against the judgment debtor is giving of actual possession of the property in the eye of law and has the effect of dispossessing him although as a matter of fact he may have succeeded in resuming back, possession as before shortly after dispossession.
In a proceeding under the Act for acquisition of land all interests are wiped out.
Actual possession of the land becomes necessary.
for its use for the public purpose for which it has been acquired.
Therefore, the taking of possession under the Act cannot be "symbolical" in the sense as generally understood in Civil Law. ' Surely it cannot be a possession merely on paper.
In the eye of law the taking of possession will have the effect of transferring possession from the owner or the occupant of the land to the Government.
Section 9(1) of the Act reads as follows "The Collector shall then cause public notice to be given at convenient places or near the land to be taken, stating that the Government intends to take possession of the land, and that claims to compensation for all interests in such land may be made to him.
" When a public notice is published at a convenient place or near the land to be taken stating that the Government intends to take possession of the land, then ordinarily and generally there would be no question of resisting or impeding the taking of possession.
Delivery or giving of possession by the owner or the occupant of the land is not required.
The Collector can enforce the surrender of the land to himself under section 47 of the Act if impeded in.
taking possession.
On publication of the notice under section (1) claims to compensation for all interests in the land has to be made ; be it the interest of the owner or of a person entitled to the occupation of the land.
On the taking of possession of the land under section 16 or 17 (1) it vests absolutely in the Government free from all incumbrances.
It is, therefore, clear that taking of possession within the meaningof section 16 or 17(1) means taking of possession on the spot.
It isneither 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 10 SC 75 18 264 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 the act: is 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.
In the instant case in agreement with the findings of the Court, I hold that the eye of law actual possession of the land in question was taken by the Tehsildar on the spot and the possession was handed over to the Principal of the Agricultural College.
It appears that the appellant on his part thought that he never gave up possession and claimed to continue in actual possession of the disputed land, because of the stay order passed by the Government on or about the 16th April, 1959.
Viewed in the light of the discussion of law I have made above, it would be noticed that possession of the land, in any event, was taken on the spot and it vested in the Government.
The appellant 's resuming possession of the land after once it was validly taken by the Government had not the effect of undoing the fact of the vesting of the land in the Government.
The Government or the Commissioner was not at liberty to withdraw from the acquisition of any portion of the land of which possession had been taken, under section 48(1) of the Act.
In the result the appeals fail and are dismissed with costs.
One set of hearing fee.
V.P.S. Appeals dismissed.

summary/full:
For the purpose of acquiring land for an Agricultural College a notification was issued under section 4 of the Land Acquisition Act, 1894, in January 1959, with respect to several pieces of land one of which belonged to the res pondents and was in possession of the appellant as tenant.
After the issue of the notification under section 6, in February 1959, the Commissioner directed that possession of that land may be taken under section 17(1) on the expiry of 15 days from the publication of the notice under section 9(1).
On March 24, 1959, the appellant filed a statement before the Land Acquisition Officer.
In that statement, he did not deny the publication of notice on the spot under section 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 land.
The Land Acquisition Officer passed orders in the presence of the appellant directing the Tahsildar 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 determining what 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 Agricultural College.
The appellant was not present at the time when the Tahsildar took possession.
There was, thereafter, correspondence 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 was passed by the Government.
On December 13, 1961, the Land Acquisition Officer wrote to the Commissioner that possession of the land was still with the appellant, and on August 8, 1968, withdrawal from the acquisition of that part of the land under section 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 allowed the petitions holing that possession of the land was taken (even though the Government took the stand that they had taken only 'symbolical ' possession) and given to the Principal of the College and that, therefore, it was not open to the Commissioner to withdraw from the acquisition under section 48(1) as amended by the Land Acquisition (Maharashtra Extension and Amendment) Act.
Dismissing the appeal to this Court, HELD : (Per Curiam) : Neither the Government nor the Commissioner could withdraw under section 48(1) from the acquisition of any portion of the land which had been taken over by and vested in the Government.
[253 F] (Per P. N. Bhagwati and A. C. Gupta JJ) : When Government proceeds to take possession of the land acquired by it under the Act.
it must take actual Possession since all interests in the land are sought to be acquired by it, and there is no question of taking 'symbolical ' possession as understood 251 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 talking of mere paper possession, without the occupant or the owner ever knowing about it.
[252E H, 153A B] 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 stated that actual possession was not taken.
The legal position is that even if the appellant entered upon the land after actual possession had been taken by and the land vested in, the Government, the appellant 's possession would not obliterate the consequence of vesting in the Government.
[253 B E] [Discussion regarding delivery of 'symbolical ' and 'actual ' possession under the C.P.C. is not necessary for the disposal of the appeals], [252 D] (Per Untwalia 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 section 9(1) of the Act is published at a convenient place or near the land to be taken that Government intends to 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 Collector can enforce surrender under section 47 if impeded.
On taking possession either under section 16 or section 17(1), the land vests absolutely in the Government free from all encumbrances.
Therefore, in a proceeding under the Land Acquisition Act for acquisition of land all interests are wiped out, and hence, the taking of possession must be taking actual possession on the spot and not symbolical possession; and surely it cannot be a possession merely on paper.
[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 and 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 possession has been taken.
The presence of the owner or the occupant is not necessary to effectuate the taking of possession.
[263H, 264A] (4)In the instant case, actual possession of the land was taken by the Tahsildar on the spot and the possession was handed over to the Principal of the College.
The Land Acquisition Officer 's statement that the land was not actually taken possession and the Government 's stand that, only symbolical possession was taken, should be viewed from the correct legal position.
So viewed, the appellant 's resuming possession after once the land was validly taken by the Government would not have the effect of undoing the fact (if vesting in the Government.
[264B, E F] 252


judgement:
Appeal No. 43 of 1968 Appeal by special leave from the judgment and order dated the, 11th December, 1967 of the Bombay High Court at Bombay ill Second Appeal No. 1428 of 1967.
V. M. Limiyae, V. N. Ganpule,R. N. Nath and Urmila Sirur for the appellant.
Y. section Chitale and A. G. Rainaparkhi, for respondents.
The Judgment of the Court was delivered by KRISHNA IYER, J.
There is more than meets the eye in the seemingly simple legal issue raised in this ejectment suit, if we probe the deeper public and professional implications of the limitations on a pleader 's implied power to enter into a compromise of a case bona fide can behalf of his client, bat in his interest, although without his consent.
The facts to use trite phraseology, fall within a narrow compass.
The landlords.
, Respondents 1 to 3, brought an action for eviction of the tenant appellant (Regular Suit 141 of 1964) under the rent control law extant in Maharashtra.
Litigation is often so harassingly long that even ",here recovery of possession is sought for immediate 338 bona fide need of the owner, the judicial process takes its slow motion course that settlement of the dispute is not infrequently preferred by both sides to protracted adjudicatory justice.
In the present case, although parties had engaged lawyers and gone to trial, they took several adjournments from court to compose their differences, The last such was granted in these terms : "19 4 65 Parties as before present "Application by defendant for adjournment granted.
Suit is adjourned for hearing to 21 4 65.
Sd/ R. H. Maslekar, Joint Civil Judge Junior Division." Eventually, on April 21, 1965 the court recorded a compromise, signed by the pleader of the tenant, giving 18 months time to give vacant possession and decreed the suit on the agreed terms.
But at heart the tenant harboured the intent to resist eviction; the impropriety of breaching she compromise was overpowered by the tempting plea of the illegality of the decree on consent.
So she, started some miscellaneous proceedings which were carried right upto this Court although dismissed in every court as incompetent.
Then she inaugurated this, the third chapter of litigation, Regular Civil Suit No. 422 of 1966 for a declaration that the decree based on a compromise entered into by her pleader without authority was not binding on her and consequently she was not liable to be dispossessed.
This last spell of litigation, after the first compromise in Court, has taken long ten years.
Socio legal research may well prove that legal justice may soon reach a point of no return if fundamental structural reform of the whole forensic process were not launched upon and frivolous litigation screened so as not to discredit faith in court justice.
Anyway, in the present case, the hierarchy of courts has held against the appellant and she has come up, by special leave, conscious of adverse findings of fact by courts below, to this Court.
The only point urged by Shri Limaye for the appellant is that Respondent 4 the pleader, Shri Palshikar, who signed the razi, bad no authority to do so, especially because the client 's consent so to do had not been secured and an advocate respondent 5 before us had also been retained in the case who had neither signed the document not represented to the Court about the settlement.
It is common case that the tenant was absent in court although her litigation agent was present (and consented) when the order was made.
Shri Limaye has raised the principal plea that Respondent 4 being a mere pleader, had no power to compromise the suit unless expressly authorised by the party and here admittedly no such express authorisation existed.
He seemed to make a distinction between advocate and pleader although at some stages he read this limitation as applicable to advocates too.
A second point faintly raised was prudently abandoned for the reason that it had not been set up in the pleadings or urged at earlier stages.
Last minute ingenuity is not fairplay in court and 339 we cannot and did not permit him to argue that the court had no material in the recitals of the compromise to make out the mandatory grounds required under the relevant 'rent control ' law for a court to direct dispossession of a tenant of a building.
We do not examine the materials of the contention of all.
Now to the only contention canvassed before us.
Although vintage rulings and relevant books have been cited and voyages to Anglo American legal systems made, we have to decide the issue in the light of Indian statute law and decisions against the backdrop of Indian conditions.
Foreign aid is helpful but in law, as in life, Indian genius must speak.
In this perspective, first we have to look tit the pertinent provisions of the Civil Procedure Code, the and the Bombay Pleaders Act.
Even before that we may reproduce the terms of the compromise which resulted in the decree for eviction in the prior suit (Regular Civil Suit No. 141 of 1964) : "IN THE COURT OF THE CIVIL JUDGE , JUNIOR DIVISION AT JALGAON Regular Suit No. 141/64 SHANKARLAL GULABCHAND Plaintiff V. ABDUL KADAR H. WELDER Defendant A compromise has been arrived at mutually between the plaintiff and the defendant and it is agreed as under : The defendant is to give to the plaintiff actual possession of the suit properties on or before the date the 30 10 66.
In case the defendant fails to deliver actual possession of the said suit properties according the plaintiff is to take actual possession of the said properties by filing a Darkhast.
The defendant is liable to pay at the rate of Rs. 55.90 the amount of the loss sustained in the form of arrears of rent inclusive of the municipal tax and education cess subsequent to the filing of the suit, from the date 1 4 64 until delivery of actual possession of the plaintiff, and accordingly, the defendant is to pay at the said rate the damages for the intervening period.
In case the defendant fails to pay (the same), the plaintiff is to recover the amount by filing a Darkhast.
The defendant is to bear his own costs and to pay to the plaintiff the latter 's costs of this suit.
The plaintiff is to take the amount of refund in respect of the Court fee stamp that may be paid.
It is agreed as above.
A decree may therefore be passed in terms thereof.
Sd/ Shankarlal Gulabchand.
Sd/ R. C. Agarwal.
Reagular Suit No. 422/66 Produced on behalf of the plaintiff on the date 30 1 67 (Signature illegible) Advocate for the plaintiff 340 (In English) Sd/ D. B. Choudhari.
Advocate for Plaintiff.
with authority to Compromise.
Sd/ B. H. Falashikar Plaintiff with authority to Comp.
No. 1 and 2 and plaintiff Shankarlal Gulabchand with pleader and defendant Abdul kadar with pleader admitted before me the compromise.
It is verified and admitted.
Sd/ R. H. Maslekar.
C. J. 24 4 65" Although the Civil Judge mentions in the order that 'defendant Abdul Kadar ' with pleader admitted before him the compromise, it was not the defendant but his agent who was actually present.
That this is an error is conceded by Sri Chitale appearing for respondents 1 to 3.
The trial court as well as the District Court went into the question whether the plaintiff appellant had made out that express directions were given to the pleader Shri Falshikar (respondent No. 4) not to compromise the suit and have come to the conclusion that no such positive instruction 'not to compromise ' was given by the party.
This being the concurrent finding of fact and the High Court having dismissed the Second Appeal in limine we may proceed on the footing that Sri Palshikar, the pleader, had not been affirmatively informed not to enter into a compromise.
The second question on which also both the Courts of fact have negatived the plaintiff appellant 's version is that the compromise was an act of sharp practice, a fraud played by the pleader on his client and on the court.
We therefore exclude the possibility of dubiety and assume bona fides on the part of the pleader.
We mention this to narrow the scope of the controversy which really turns on the existence or otherwise of the implied authority of a pleader to compromise a suit in the interests and on behalf of his client although without actual reference to him where his vakalat is silent on the point.
There is no statutory provision decisive of this issue and we have to garner the principles from various factors like the status and significance of the legal profession in society, the wider powers conferred on lawyers as distinguished from ordinary agents on account of the triuna facets of the role of an advocate vis a vis the client, the court and the public and its traditions and canons of professional ethics and etiquette.
Above all, the paramount consideration that the Bench and the Bar form a noble and dynamic partnership geared to the great social goal of administration of justice puts the lawyer appearing in the court in a class by himself and to compare him with an ordinary agent may be to lose sight of the lawyer as engineer of the rule of law in society.
National integration at the lawyer 's level was statutorily achieved by the whereby the Indian Bar, with a classless orientation, came into existence permitting enrollment of various categories of legal practioners like vakils and pleaders (see section 29).
It 341 must be noted, however, that Shri Palshikar has not been enrolled as an Advocate.
On the contrary, the party had briefed, apart from Shri Palshikar (just a pleader with a sanad under the Bombay Pleaders Act, 1920 for short, the Bombay Act), an Advocate Shri Khatib, 6th respondent.
Section 55 of the provides that every pleader who does not elect to be enrolled as an Advocate under that Act shall continue to enjoy the same rights as respects practice in any court as he had before that Act came, into force.
Thus his rights as respects practice in any court are what he had enjoyed under the Bombay Act, notwithstanding its repeal by the .
Our attention was drawn to sections 9 and 16 of the Bombay Act but neither section helps us much in regard to the controversy bearing on the competence of a pleader, to enter into a compromise without the consent of the, concerned party.
Even so, section 9 illumines the area to some extent and the relevant portion may be extracted "9.
No person shall appear, plead or act for any party in any civil proceeding in any court unless he is a pleader as defined in this Act and is entitled and duly empowered to appear, plead and act for such party in such proceeding;" Shri Chitale contends and this argument has found favour with the courts below that a pleader has power to act for any party and to settle a dispute involved in a suit is ancillary to or implied in this power to act.
When he settles his client 's suit he acts for him as much as he does so when he gives up a point as meritless.
We will examine this matter more in depth a little later.
There is force in the suggestion that even though a pleader or ' vakil might not have chosen to get himself enrolled , in their very eligibility to be enrolled as advocates, there is implicit statutory acceptance of the position that all these categories of legal practioners have substantially the same powers vis a vis client and court.
The egalitarian ethos injected by the makes for parity of powers between pleaders and advocates to act on behalf of their client.
We think if right to read into the complex of provisions bearing on legal practitioners this activist identity of power to act.
After all, every legal practitioner labels apart, is an officer of the court and aids in the cause of justice.
Logically and sociologically and, indeed, legally, their responsibility to their clients and to the Court have to be the same even though some of them may be entitled to appear only in District Courts while others in the High Courts, and Advocates in any Court in the whole of the country.
The quality of the power limitaions on the courts in which appearance is permissible being ignored for the time being cannot stand differentiation.
This stand is reinforced by a reference to the Civil Procedure Code which regulates the legal process in Indian courts.
Order III, r. 1, reads : " 1.
Any appearance, application or act in or to any Court, required or authorised by law to be made or done by a party in such Court, may, except where otherwise 442 expressly provided by any law for the time being in force, be made or done by a PartY in person, or by his recognised agent or by a pleader appearing, applying or acting on the case may be,.on his behalf We may also read r. 4(1) of the same order "(1) No pleader shall act for any person in any Court, unless he has been appointed for the purpose by such person by a document in writing signed by such person Both these provisions clothe the pleader with the power to act in any court provided he has been empowered by a vakalatnama in this behalf.
The Code has defined 'pleader ' in these general terms : "Sec.
2(15) 'Pleader ' means any 'person entitled to appear and plead for another in Court, and includes an advocate, a vakil and attorney of a High Court.
" It is obvious that this definition obliterates any status wise distinction between an advocate and any other legal practitioner like a vakill or pleader entitled to appear in court on behalf of his client.
A profession whose founding, fighting faith is equal justice under the law does not practice inequality within its fold deaf to the mood music of non discrimination.
The broad conclusion, having due regard to the perspective 'we have set out right at the beginning, is that lawyers, be they Advocates, vakils or pleaders, stand on the same footing in regard to their power to act on behalf of their clients.
The cases cited before us, discerningly understood, confirm the soundness of this equating principle.
As earlier clarified, the sole issue is the delineation of the scope and ambit of 'action.
Does the power to 'act ' cover the right to settle the suit without getting the client 's consent, or is it implied in the engagement ? To clear possible confusion we may straightaway state that both sides agree and that is the undoubted law that if a suitor countermands his pleader 's authority to enter into a compromise or withholds, by express recital in the vakalat, the power to compromise the legal proceeding, the pleader (or, for that matter, the Advocate, cannot go against such advice and hind the principal, his client.
This is as illegal as it is unprofessional.
Shri Limaye has relied on a few decisions both of the Privy Council and of the Indian High Courts, in his endeavor to make out that pleaders cannot compromise suits unless expressly authorised 'by the vakalatnama.
To substantiate the contrary position, Shri Chitale has drawn our attention to other rulings.
These citations may he briefly surveyed and they are : Sourindra vs Heramba(1) ; Sourendra Nath vs Tarubala Dasi(2); Jiwibai vs Ramiuwar (FB) (3); Supaji vs (1) A.I.R. 1923 PC 98.
(2) A.I.R. 1930 PC 158.
(3) A.I.R. 1947 Nag.
343 Nagorao(1); Ramaswami vs Jai Hind Talkies(2); Govindammal vs Marhmuthu Maistry (3); Laxmidas Ranchhoddas vs Savitabai(4); section section walker vs L. section Walker(5); and C. section Nayakam vs A. N. Menon(6) .
Although, on an analysis of these decisions, some discordant notes may be heard, there is substantial harmony of judicial opinion on the proposition that the different classes of legal practitioners have the same rights in relation to the case in which they have been engaged.
Indeed, even if there be any marginal doubt, we have to interpret the law in such manner as to promote the integration of the Indian Bar in tune with the spirit of section 29 of the which categorically states that subject to the provisions of that Act and any rules made thereunder, there shall, as from the appointed day, be only one class of persons entitled to practice the profession of law, namely, advocates.
Shri Limaye placed great reliance on the Judicial Committee 's statement in Sourindra (supra) where Sir John Edge observed; "A pleader, who does not hold and has not filed in the suit before the Court his client 's general power of attorney authorising him generally to compromise suits on behalf of his clients, cannot be recognised by a Court as having any authority to compromise the suit unless he has filed in the suit his client 's vakalatnama giving him authority to compromise the suit before the Court.
" Superficially understood, this supports the appellant in wriggling out of the compromise, because the pleader Shri Phalsikar had not been given any authority to compromise the suit, in the vakalatnama, but we do not think that this is a disability specially attaching to a pleader as distinguished from an Advocate.
We go further and consider that these observations have to be construed in the context of the fact that in the facts of that case some of the defendants had not filed vakalatnamas at all and that, ultimately, the Judicial Committee had upheld the compromise after special valalatnamas were filed for the unrepresented parties.
The question of the powers of a pleader, as distinguished from the larger powers of an Advocate did not come up for consideration in that appeal and we cannot treat the ruling as authority for the position taken up by the appellant.
Lord Atkin, speaking for the Judicial Committee in Sourendra Nath (supra) also had to deal with agreement to compromise a suit and the implied power of an advocate to settle the suit on behalf of his (1) A.I.R, 1954 Nag.
(2) A.I.R. 1956 Mad.
(3) A.I.R. 1959 Mad.
(4) (5) A.I.R. 1960 Bom.
(6) A.I.R. 1968 Ker.
10 SC 75 23 444 client. '.he statement of the law is instructive and may well extracted: "They are of opinion that Mr. Sircar, as an advocate of the High Court, had, when briefed on behalf of the defendant, in the Cou rt of the Subordinate Judge of Hoogly, the implied authority of his client to settle the suit.
Their Lordships have already said that he must be treated as though briefed on the trial of the suit.
Their Lordships regard the power to compromise a suit as inherent in the position.
of an advocate in India.
The considerations which have led to this implied power being established in the advocates of England, Scotland and Ireland apply in equal measure to India.
It is a power deemed to exist because its existence is necessary to effectuate the relations between advocate and client, to make possible the duties imposed upon the advocate by his acceptance of the cause of his client.
The advocate is to conduct the cause of his client to the utmost of his skill and understanding.
He must in the interests of his client be in the position, hour by hour, almost minute by minute, to advance this argument, to withdraw that; he must make the final decision whether evidence is to be given or not on any question of fact ; skill in advocacy is largely the result of discrimination.
These powers in themselves almost amount to powers of compromise ; one point is given up that another may prevail.
But in addition to these duties, there is from time to time thrown upon the, advocate the responsible task of deciding whether in the course of a case he shall accept an offer made to him, or on his part shall make an offer on his client 's behalf to receive or pay something less than the full claim or the full possible liability.
Often the decision must be made at once.
If further evidence is called or the advocate has to address the Court the occasion for settlement will vanish.
In such circumstances, it the advocate has no authority unless he consults his client, valuable opportunities are lost to the client." (emphasis, ours) Their Lordships referred to the apparent authority that counsel has in England to compromise in all matters connected with the action.
The jurisprudential basis as a branch of the Law of Agency has been thus expressed by Lord Atkin : "Two observations may be added.
First, the implied authority of counsel is not an appendage of office, a dignity added by the Courts to the status of barrister or advocate at law.
It is implied in the interests of the client, to give the fullest beneficial effect to his employment of the advocate.
Secondly, the implied authority can always be countermanded by the express directions of the client.
No advocate has actual authority to settle a case against the express instructions of his client.
If he considers such express instructions 345 contrary to the interests of his client, his remedy is to return his brief.
" The Judicial Committee equated the Indian Advocate and his duties to his client in the conduct of the suit as in no wise different from those of his counter parts in the United Kingdom : "There are no local conditions which make it less desirable for the client to have the full benefit of an advocate 's experience and judgment.
" There is an obscure passage in the judgment which, according to Shri Limaye supports him : True, the Board has observed : "Where the legal representative in Court of a client derives his authority from an express written authority, such as a vakalatnama, different considerations may well arise, and in such cases their Lordships express no opinion as to the existence of any implied authority of the kind under discussion.
" We are unable to see anything here to contradict the general power, actual though implied, of counsel (be he advocate or pleader) to settle the suit of his client as part of his duty to protect the interests of his client.
We may now move on to the Indian decisions, none of which specifically uphold the absence of implied authority of a pleader qua pleadegr to enter into a compromise binding on his client.
Perhaps the clearest pronouncement against the degrading differentiation of pleaders is that by a Full Bench of the Nagpur High Court in Jiwibai (supra).
After an exhaustive discussion, which we need not repeat, the Court concluded at p. 26 : "Our answer to the second question is that counsel in India, whether Barristers, Advocates, or pleaders, have inherent powers, both to compromise claims, and also to refer disputes in Court to arbitration, without the authority or consent of the client, unless their powers in this behalf have been expressly countermanded, and this, whether the law requires a written authority to 'act ' or 'plead ' or not." (emphasis, ours) The legal deduction is contained in these emphatic words : "Brush unrealities aside and what do we get but a contract ? How much more is that the case in those parts of India where no solicitor intervenes and counsel and client meet face to face ? How much more when there is an actual instrument of engagement or a power of attorney ? How much more when the law requires writing ?" (p. 24) 346 "The Privy Council tells us that there is inherent in the position of counsel an implicit authority to do all that is ex pedient, proper and necessary for the conduct of the suit and the settlement of the dispute." (p. 25) "Turning next to 0.3, R. 4, consider again the case in which a pleader is appointed simply to 'act ' without any attempt to set forth the scope of his acting.
(That incidentally is in substance the power given to the plaintiff 's counsel in the case).
Is compromise not an acting ?" (p. 25) Our attention has been drawn to Supaji (supra) which, while affirming implicit authority of an Advocate, doubts the application of the same principle to pleader.
We unhesitatingly prefer the Full Bench view (supra).
A little reflection will unfold the compelling necessity of giving a comprehensive meaning to the expression 'act ' and for the inclusion of all categories of legal practitioners as repositories of this.
ample agency, bound yet broadened by obligatory traditions, professional control and public confidence in the Bar as a massive social instrumentality of democracy.
To act for the suitor involves myriad intricate actions often so legal that the client may not even understand the implication, sometimes so sudden that time for taking instructions is absent.
Representation in court may be so demanding and so transforms forensic obligation that a lawyer may have ethical difficulties in mechanically obeying all the directions of his principal.
The legal skill that is hired by the client may, for its very effective exercise, need an area of autonomy and quickness of decision that to restrict the agency to express authorisation is to ask for an unpredictable and endless enumeration of powers such as what to ask a witness and what not to, what submissions to make and what points to give up and so on.
To circumstances the power to act is to defeat the purpose of the engagement.
Those who know how courts and counsel function will need no education on the jurisprudence of lawyer 's position and powers.
Of course, we hasten to enter a caveat.
It is perfectly open to a party, like any other principal, to mark out in the vakalat or by particular instructions forbidden areas or expressly withhold the right to act in sensitive matters, the choice being his, as the master.
If the lawyer regards these fetters as inconsistent with his position, he may refuse or return the brief.
But absent speaking instructions to the contrary, the power to act takes in its wings the right and duty to save a client by settling the suit if and only if be does so bona fide in the interests and for the advantage of his client.
This amplitude of the power to act springs from the builtin dynamism, challenge and flux of the very operation of legal representation as felicitously expressed, if we may say so with great respect, in the noble words of Lord Atkin (Sourendra Nath 's Case (supra).
We may supplement the grounds for giving this wider construction by the fact that the legal profession is a para public institution which deserves the special confidence of and owes greater responsibility to the community at large than the ordinary run of agency.
347 This reasoning has been high lighted by the Kerala High Court in its Full Bench decision in Nayakaim (supra).
Mathew J., examined the English authorities and applied it to Indian conditions.
The learned Judge observed "The construction of a document appointing an agent is different from the construction of a vakalat appointing counsel.
In the case of an agent the document would be construed strictly and the agent would have only such powers as are conferred expressly or by necessary implication.
In the case of counsel the rule is otherwise because there we are dealing with a profession where well known rules have crys tallised through usage.
It is on a par with a trade where the usage, becomes an additional term of the contract, if not contrary to the general law or excluded by express agreement." (p. 215) More importantly, Mathew, J. placed accent on the special position of the Bar "That counsel is not a mere agent of the client would be made clear if we look at the nature of his duties and relationship with the public and the court.
Counsel has a tripartite relationship : one with the public, another with the court, and the third with his client.
That is a unique feature.
Other professions or callings may include one or two of these relationships but no other has the triple duty.
Counsel 's duty to the public is unique in that he has to accept all work from all clients in courts in which he holds himself out as practicing, however unattractive the case or the client." (p. 216) The passages quoted from Lord Dearing M. R. in Ronadel 's Case bear repetition when considering the public justice role of the Bar : "A barrister cannot pick or choose his clients.
He is bound to accept a brief for any man who comes before the courts.
No matter how great a rascal the man may be.
No matter how given to complaining.
No matter how undeserving or unpopular his cause.
The barrister must defend him to the end.
Provided only that he is paid a proper fee, or in the case of a dock brief, a nominal fee.
He must accept the brief, and do all he honorably can on behalf of his client.
I say I all he honorably can ' because his duty is not only to his client.
All those who practice at the Bar have from time to time been confronted with cases civil and criminal which they would have liked to refuse, but have accepted them as burdensome duty.
This is the service they do to the public.
Counsel has the duty and right to speak freely and independently without fear of authority, without fear of the judges and also without fear of a stab in the back from his own client.
To some extent, he is a minister of justice.
" 348 "It is a mistake to suppose that he is the mouth piece of his client to say what he wants : or his tool to do what he directs.
lie is none of these things.
He owes allegiance to a higher cause.
It is the cause of truth and justice.
He must not consciously misstate the facts.
He must not knowingly conceal the truth.
He must not unjustly make a: charge of fraud, that is, without evidence to support it.
He must produce all the relevant authorities, even those that are against him.
He must see that his client discloses, if ordered, the relevant documents, even those that are fatal to his case.
He must disregard the most specific instructions of his client, if they conflict with his duty to the court.
The code which requires a barrister to do all this is not a code of law.
It is a code of honour.
If he breaks it, he is offending against the rules of the profession and is subject to its discipline." (p. 216) A Division Bench of the Bombay High Court (where Chagla C.J., spoke for the Court) takes a pragmatic view of a lawyer 's powers to settle as is reflected from the head note which is sufficient for our purpose (see head note in Ranchhoddas (supra); "It is impossible for a member of the Bar to do justice to his client and to carry on his profession according Lo the highest standards unless he has the implied authority to do everything in the interests of his client.
This authority not only consists in putting forward such arguments as be thinks proper, but also to settle the client 's litigation if he feels that a settlement would be in the interests of his client and it would be foolish to let the litigation proceed to a judgment, This implied authority has also been described as an actual authority of counsel or an advocate.
This authority may be limited or restricted or even taken away.
If a l imitation is put upon counsel 's authority, his implied or actual authority disappears or is destroyed.
In such a case he has only an ostensible authority as far as the other side is concerned.
When the actual authority is destroyed and merely the ostensible authority remains, then although the other side did not know of the limitation put upon the authority of an advocate, the Court will not enforce the settlement when in fact the client had withdrawn or limited the authority of his advocate.
" The Madras decisions have not been consistent.
In Ramaswami 's Case (supra) it was observed "It has been laid down in Jagpati Mudaliar vs Ekabara Mudaliar that it is not competent to a pleader to enter into a compromise on behalf of his client without his express authority to do so.
See also Thermal Ammal vs Sokkammal and Sarath Kumari Dasi vs Amulyadhan 349 As the vakalat did not give counsel authority to compromise, Kesrvaraman Chettiar and the two other directors who sail with him would not be bound by the compromise." (p. 589) The reference to 'pleader ' here is not really in contradistinction to 'advocates '.
But in Govindammal (supra) Ramaswami, J., after an elaborate examination of the Indian and Anglo American cases and books sums up thus : "An examination of these authorities and extracts from standard publications on professional conduct, leads us to the following deductions : The decisions appear to be fairly clear that even in cases where there is no express authorisation to enter into a compromise, under the inherent authority impliedly given to the Vakil, he has power to enter into the compromise on behalf of his client.
But in the present state of the clientele world and the position in which the Bar now finds itself and in the face of divided judicial authority and absence of statutory backing, prudence dictates that unless express power is given in the vakalat itself to enter into compromise, in accordance with the general practice obtaining, a special vakalat should be filed or the specific consent of the party to enter into the compromise should be obtained.
If an endorsement is made on the plaint etc., it would be better to get the signature or the thumb impression of the party affixed thereto, making it evident that the party is aware of what is being done by the vakil on his or her behalf." (p. 1 2) In the American system there is only a single class of attorney unlike in Great Britain, but the implied power to compromise has, not been upheld.
American Jurisprudence section 98 (pp. 318 320) has the following to say : "The rule is almost universal that an attorney who is clothed with no other authority than that arising from his employment in that capacity has no implied power by virtue of his general retainer to compromise and settle his client 's claim or cause of action, United States vs Beebe ; , Holkar vs Parker ; , Golder vs Bradley (C.C.A. 4th) , Anucas, 1917 A 921 (ZI9) : In re Sonyder , Ward vs Orsini , except in situations where he is confronted with an emergency and prompt action is necessary to protect the interests of the client and there is no opportunity for consultation with him.
Generally, unless such an emergency exists, either precedent special authority from the client or subsequent rati 350 fication by him is essential in order that a compromise or settlement by an attorney shall be binding on his client." (p. 12) We are impressed by the eloquent and luminous observations of Lord Reid, if we may say so with great deference, in Rondel vs Worsley (1) : "Every counsel has a duty to his client fearlessly to raise every issue, advance every argument, and ask every question, however distasteful, which he thinks will help his client 's case.
But, as an officer of the court, concerned in the administration of justice, he has an overriding duty to the court, to the standards of his profession, and to the public, which may and often does lead to a conflict, with his client 's wishes or with what his client thinks are his personal interests.
Counsel must not mislead the court, be must not lend himself to casting aspersions on the other party or witnesses for which there is no sufficient basis in the information in his possession, he must not withhold authorities or documents which may tell against his clients but which the law or the standards of his profession require him to produce.
And by so acting he may well incur the displeasure or worse of his client so that if the case is lost, his client would or might seek legal redress if that were open to him." (Cases and Materials on The English Legal System by Geoffrey Wilson Sweet & Maxwell 1973,p. 124) We may now deal with the properties whichmay bear upon thebona fides of the lawyer 's conduct if he settles a suit, without client 's consent, Powers are one thing, prudence is another and indeed the latter sometimes bears upon the former.
Mathew J set the record straight, if we may say with respect, in Nayakam (supra) : "Although we see no reason to limit or restrict the implied authority of counsel to compromise an action or confess judgment unless expressly done so by his client, we think that both in the interest of the client and the good reputation of counsel, it is always advisable that he should get specific instructions before taking such a radical step." (p. 216) Another facet of the limit on lawyer 's powers is articulated in the Bombay view, if we may use that expression for convenience, the ruling viz.
, Waikar (supra ) being one relating to the implied of an advocate to compromise.
Certainly, as pointed out there, the power cannot extend to matters extraneous to the action.
Mudholkar J. has uttered a caution that, as far as possible, irrespective of the (1) [1969] 1 A.C. 191.
351 scope of the power the lawyer must prefer to get his client 's concurrence to the settlement.
The reasons are obvious.
If the compromise is not bona fide in the client 's interests, the power is exceeded and it is rash to bind a party to razi without his knowledge when there is time to consult and the terms affect him adversely.
The Privy Council 's observation in Sheonandan Prasad Singh vs Abdul Fateh Mohammed Reza (11) serve as reminder : "But whatever may be the authority of counsel, whether actual or ostensible, if frequently happens that actions are compromised without reference to the implied authority of counsel at all.
In these days communication with actual principals is much easier and quicker than in the days when the authority of counsel was first established.
In their Lordship 's experience both in this country and in India it constantly happens that counsel do not take upon themselves to compromise a case without receiving express authority from their clients for the particular terms : and that this position in each particular case is mutually known between the parties." (p. 22) (s upra) Ramaswami J., also in Govindammal (supra) in the paragraph already extracted, has referred to a disturbing aspect which must alert the public and the profession to the lurking dangers of a carte blanche to counsel to compromise a case without client 's precedent permission.
The learned Judge quotes, what may be a cautionary signal.
from Thenal Ammal vs Sokkummal (ILR , 235AIR "It is not the ordinary duty of an Advocate to negotiate terms, without reference to his client, with the opposite party.
Such an action is calculated to place the practitioner in a false position.
We do not think it is desirable that such a power should vest in him in the interest of the profession.
From the point of view of the client, we think that it is not safe that he should be regarded by engaging a vakil to have given him authority to dispose of his right in any way he chooses.
Therefore we think that the general power claimed is not in consonance with the highest ideals of the profession or of justice.
For these reasons we think that a very strict interpretation should be placed upon vakalat containing powers of this kind.
" Ramaswami, J. has adverted to the wiser alternative of counsel seeking client 's consent before compromising the litigation, having regard to the 'position in which the Bar finds itself ' these days.
(1) AIR 1935 P.C. 119.
352 While we are not prepared to consider in this case whether an Advocate or pleader is liable to legal action in case of deviance or negligence, we must uphold the actual, though implied, authority of a pleader (which is a generic expression including all legal practitioners as indicated in section 2(15), C.P.C.) to act by way of compromising a case in which he is engaged even without specific consent from his client, subject undoubtedly to two over riding considerations : (i) He must act in good faith and for the benefit of his client ; otherwise the power fails (2) it is prudent and proper to consult his client and take his consent if there is time and opportunity.
In any case, if there is any instruction to the contrary or withdrawal of authority, the implicit power to compromise in the pleader will fall to the ground.
We need hardly emphasise that the bar must sternly screen to extirpate the black sheep among them, for Caesar 's wife must be above suspicion, if the profession is to command the confidence of the community and the court.
On the facts of the present case we have little doubt that the pleader has acted substantially with the knowledge of and encouraged by his client.
The several adjournments taken by the appellant specifically for settling the suit speak better when we read the penultimate application for postponement on this score.
Exhibit 21, d/17 2 65 runs: "In the Court of the Joint Civil Judge, J. D. at Jalgaon Reg.
Suit No. 141/64 Shankarlal Gulabchand More & Ors. . . . .
Plaintiffs Versus A.Kadarr H. Welder. . . .
Defendant The respectful application on behalf of the Plaintiffs and the Defendant is as follows : In the said matter, talks regarding compromise are going on mutually between the plaintiffs and the defendants.
The talks have not concluded as yet.
Hence be pleased to adjourn the hearing fixed for today and give another date for hearing.
This is the application.
Date : 17 2 1965 Sd/ D. H. Chaudhri Advocate for plaintiff Sd/ B. H. Palshikar Advocate for defendant.
Allowed Sd/ R. H. Maslekar 17 2 65.
" We feel no doubt that the broad sanction for the compromise came from the tenant, that no shady action is imputable to respondent 4 and that his conduct has been motivated by the good of his client.
353 The last posting was for reporting the compromise.
But, on that date, the Court declined further adjournment and the party being absent and away, the pleader for the appellant had no alternative but to suffer an eviction decree or settle it to the maximum advantage of his Ordinarily when a junior and senior appear in the case, it would be an adventurist act exposing himself to great risk on the part of the junior to report a compromise without consulting his senior, even assuming that the party was not available.
Nevertheless, we have had an over all view of the facts of the present case and do not feel inclined to the view that the implied authority of the pleader has been abused.
The courts below were right in fastening the settlement of the suit upon the appellant.
Nevertheless, it is right to stress that counsel should not rush in with a razi where due care will make them fear to tread, that a junior should rarely consent on his own when there is a senior in the brief, that a party may validly impugn an act of compromise by his pleader if he is available for consultation but is by passed.
The lawyer must be above board, especially if he is to agree to an adverse verdict.
As for classes of legal practitioners, we are equally clear that the tidal swell of unification and equalisation has swept away all professional sub castes.
Anyway, that is the law.
Such artificial segregations as persist are mere proof of partial survival after death and will wither away in good time.
Anyway, that is our hope.
We dismiss the appeal, but in view of divided judicial opinion in the High Courts and the Constitutional obligation of this Court under article 141 to resolve and settle the law we direct the parties will bear their costs in this Court.

dataset_name: IN-Abs

summary/full:
The appellant engaged a pleader to fight her case in a Court.
The case was adjourned from time to time for the parties to compose their differences.
Eventually, the Court recorded a compromise, signed by the pleader of the appellant.
At the time of signing the compromise, though the appellant was not present in Court, her litigation agent was present and was consulted when the order was made.
The appellant later filed a suit for a declaration that the decree based on a compromise entered into by her pleader was without authority and was not binding on her.
The suit was dismissed.
The appeal was dismissed in limine by the High Court.
On appeal to this Court, it was contended that the respondent, being a mere pleader, had no power to compromise a suit unless expressly authorised by the party.
Dismissing the appeal ` HELD : (a) Lawyers, be they advocates, vakils or pleaders, stand on the same footing in regard to their power to act on behalf of their clients.
By the , the Indian Bar came into existence permitting enrollment of various categories of legal practitioners like vakils and pleaders.
Section 55 of the Act provides that every pleader, who did not elect to be enrolled as 'an advocate tinder that Act, shall continue to enjoy the same ,is rights respects practice in any Court as be had before that Act came into force.
[340 H, 341 A] In the instant case, though the respondent.
bad not enrolled himself as an advocate, his.
rights respects practice, in any Court are what he had enjoyed under the Bombay Pleaders Act, 1920 notwithstanding its repeal P. by the .
[341 B].
(b) Every legal practitioner is an officer of the Court and aids in the cause of justice.
The responsibility of the advocates to their clients and to the Court has to be the same even though some of them may be entitled to appear only in District Courts while others in High Courts.
The quality of power cannot stand differentiation.
[341 GH] (2) If a suitor countermands his pleader 's authority to enter into a compromise or withholds, by express recital in the vakalat, the power to compromise the legal proceeding, the pleader or the advocate cannot go against such advice and bind the principal, his client.
This is as illegal as it is unprofessional.
[342 FG] Jiwibai vs Ramjuvar, AIR 1947 N4g.
17, approved.
(3) To act for the suitor involves myriad intricate actions often so legal that the client may not even understand ' the implication.
Representation in Court may be so demanding and so transforms forensic obligation that a lawyer may have ethical difficulties in mechanically obeying all the directions of his principal.
The legal skill that is hired by the client may, for its very effective exercise, 'need in area of autonomy and quickness of decision that to restrict the agency to express authorisation is to ask for an unpredictable and endless enumeration of powers.
To circumscribe the power to act is to defeat the purpose of the engagement.
It is perfectly open to a party, like any 337 other principal, to mark out in the vakalat or by particular instructions forbidden areas or expressly withhold the right to act in sensitive matters, the choice being his, as the master.
The legal profession is a para public institution which deserves the special confidence of and owes greater responsibility .to the community at large than the ordinary run of agency.
[346 D G, H] Sourindra vs Heranba, AIR 1923 PC 98, followed.
Laxmidas Ranchhodrlas vs Savitabai, , section section Waiker vs L. section waiker, AIR 1960 Bom.
20 and C. section Nayak vs A. N. Menon AIR 1963 Ker. 213 approved.
Rondel vs Morsley [1969] 1 A. C. 191 referred.
(4) The Advocate or pleader has authority to act by way of compromising at case in which he is engaged even without specific consent from his client subject to two over riding considerations : (i) He must act in good faith and for the benefit of his client; otherwise the power fails.
(ii) It is prudent and proper to consult his client and take his consent if there is time and opportunity.
In any case, if there is any instruction to the contrary or withdrawal ' of authority, the implicit power to compromise in the pleader will fall to the ground.[352 B] In the present case, the 'pleader had acted substantially with the knowledge of and encouraged by his client.
The several adjournment taken by the appellant specifically for settling the suit speak for themselves.
There is no doubt that the broad sanction for.
the compromise came from the appellant, that no shady action was in imputable to the respondent and that his conduct had been motivated by the good of his client.
[352 H] [Counsel should not rush in with a compromise where due care will make them fear to tread, that a junior should rarely consent on his own when there is a senior in the brief, that a party may validity impunge an act of compromise by his pleader if he is available for consultation but is by passed.
The lawyer must be above board, especially if he is to agree to an adverse verdict.] [353 C D]